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THE 

REVISED    STATUTES 


OF 


THE  STATE  OF  NORTH  CAROLINA, 


PASSED   BY   THE 

GENERAL  ASSEMBLY  AT  THE   SESSION  OF   1S36— 7, 

INCLUDING 

AN  ACT  CONCERNING  THE  REVISED  STATUTES  AND  OTHER  PUBLIC  ACTS, 

PASSED    AT     THE   SAME    SESSION  ; 
TOGETHER    WITH 

THE  SECOND  CHARTER  GRANTED  BY  CHARLES  THE  2d  TO  THE   PROPRIETORS  OF   CAROLINA— THE  GREAT  DEED 

OF  GRANT  FROM  THE  LORDS  PROPRIETORS— THE  GRANT  FROM  GEORGE  THE  2d  TO  JOHN  LORD 

GRANVILLE— THE  BILL    OF   RIGHTS   AND   CONSTITUTION  OF   THE  STATE,  WITH   THE 

AMENDMENTS    THERETO— THE    CONSTITUTION    OF    THE    UNITED    STATES, 

WITH    THE  AMENDMENTS— THE   TREATY  OF   PEACE  OF  n83-THE 

MECKLENBURG  DECLARATION   OF   INDEPENDENCE, 

WITH  A  SHORT   NARRATIVE   THEREOF. 


Revised  under  an  Act  of  the  General  Assembly,  passed  at  the  Session  of  1833 — 4,  by 
FREDERICK   NASH,  JAMES  IREDELL   AND   WILLIAM  H.  BATTLE. 


PRINTED    AND    PUBLISHED, 
In  pursuance  of  an  Act  of  the  General  Assembly,  passed  at  the  Session  of  1836—7,  under  the  supervision  and  direc- 
tion of 

JAMES  IREDELL  AND  WILLIAM  H.  BATTLE. 


IN    TWO    VOLUMES. 

VOLUME  I. 


RALEIGH: 

PUBLISHED    BY    TURNER    AND    HUGHES 

1837, 


i 


BOSTON TUTTLE,  DENNETT  &  CHISHOLM PRINTERS 17  SCHOOL  STREET. 


PMEFAC 


The  revision  and  consolidation  of  the  whole  public  statute  law  will  consti- 
tute an  important  epoch  in  the  legislative  history  of  North  Carolina.  In  pre- 
senting this  work  to  the  public  the  undersigned,  commissioners  for  superin- 
tending its  publication,  have  thought  that  some  facts,  connected  with  and 
illustrating  that  history,  might  be  neither  an  inappropriate  nor  uninteresting 
introduction.  Their  limits  confine  them  to  a  brief  summary,  and  compel 
them  to  omit  much,  both  of  detail  and  remark,  that  would  be  necessary  to  do 
justice  to  the   subject. 

The  first  permanent  settlement  in  North  CaroHna  was  made  about  the 
year  1660,  by  emigrants  from  Virginia,  on  the  north  side  of  Albermarle 
sound,  and  probably  on  Durant's  neck  in  Perquimons  county,  lying  between 
Perquimons  and  Little  rivers.  The  oldest  land  title  is  a  conveyance  for 
that  neck  of  land  from  the  king  of  the  Yeopim  Indians  to  George  Durant, 
dated  in  1662.  On  the  twenty  fourth  of  March,  1663,  King  Charles  the 
Second  granted  to  Edward,  Earl  of  Clarendon,  and  others,  as  true  and 
absolute  Lords  Proprietors,  all  the  country  from  the  Atlantic  to  the 
Pacific  ocean,  included  between  the  thirtyfirst  and  thirtysixth  parallels  of 
north  latitude  ;  and  on  the  thirtieth  of  June,  1665,  by  a  second  charter  he 
enlarged  the  powers  of  the  grantees  and  extended  their  boundaries  so  as  to 
include  all  the  country  between  the  parallels  of  thirtysix  degrees  thirty 
minutes  and  twentynine  degrees  north  latitude.  These  grants  will  be  found 
in  the  second  volume  of  this  work.*  Among  other  powers  which  they  con- 
ferred on  the  Lords  Proprietors  was  that  of  enacting  laws  and  constitutions 
for  the  people  of  that  province  by  and  loith  the  advice^  assent  and  approbation 
of  the  freemen  thereof ^  or  of  the  greater  part  of  them,  or  of  their  delegates  or 
deputies,  who  were  to  be  assembled  from  time  to  time  for  that  purpose.  In 
the  year  1663,  George  Drummond  was  appointed  by   Governor  Berkley  of 

*  2d  Vol.  p.  1.  and  437.  , 


VI  PREFACE.    , 

Virginia,  in  pursuance  of  instructions   from  the  Lords  Proprietors,  the  first 
governor  of  the  colony,  then  known  as  the  county  of  Albemarle.     In  October, 
1677,  Governor  Drummond  was  succeeded  by  Samuel  Stephens  who  was  au- 
thorized to  grant  land,  reserving  to  the  Lords  Proprietors  one  half  of  the  gold 
and  silver  ore.     At  this  time  the  first  constitution  was  given  to  the  colony.     It 
reeled  that  the    governor  should  act  with  the  advice  of  a  council  of  twelve, " 
one  half  to  be  appointed  by  himself,  the  other  half  by  the    assembly,  and  the 
assembly    was  to  be  composed  of  the  governor,  the  council  and  twelve  dele- 
gates chosen  by  the  freeholders.     Historians  do  not  agree  as  to  the  precise 
year  in  which  the  first  legislative  body  in  North   Carolina  convened.     It  was 
certainly  however  either  in  1666  or  1667.      This  legislature  was  called  "the 
Grand  Assembly  of  the  County  of  Albemarle,"  and  on  its  petition  the  Lords 
Proprietors  by  an  instrument,  since  called  the  "  Great  Deed  of  Grant,"*  di- 
rected that  lands  should   be  held  by  the  inhabitants  of  the  said  county  on  the 
same  terms  and  conditions   as    lands  were  held  by  the  inhabitants  of  Virginia. 
The  principal  acts  of  this  assembly  were  such  as  were  beheved  to  be  required 
by  the  peculiar  situation  of  the  country,  and  were  prompted  by  an  anxious  de- 
sire to  increase  its  population.      Suits  for  any  debts  created  out  of  the  country 
were  prohibited  for  five  years — new  settlers  were  exempted  from  taxation  for 
one  year — the    right  to  a  certain   quantity  of  land,  acquired   by   migration, 
could  not  be  transferred  until  the  owner  had  remained  two  years  in  the  country 
— dealers  from  abroad  were  prohibited  from  trafficking  with  the  Indians  ;  and 
as  there  were  no  regular  ministers,  marriages  might  be  contracted  by  a  simple 
declaration  by  the  parties  of  their  mutual  consent,  made  before    the  governor 
or  a  member  of  the  council  in  the  presence  of  a  few  neighbors.     These  laws 
were  transmitted  to  and  approved  by  the  Lords  Proprietors,  who  had  reserved 
to  themselves  a  veto  on  the  acts  of  the  assembly.     In  July,  1669,  the   Lords 
Proprietors  adopted  a  new  form  of  government  for  their  colony.     It  was  styled 
"  The  Fundamental  Constitutions  of  Carolina,"  and  was  the  production  of  the 
celebrated  John  Locke. f     Its  provisions  were  so  illy  adapted   to  the  situation 
of  the  country  and  to  the  habits,  customs  and  feehngs  of  the  people,  for  whom 
it  was  intended,  that  all  the  efforts  of  the  proprietors  could  never  carry  it  into 
practical  operation.     After  producing  great   discontent,  faction   and  disorder 
throughout  the  colony   for  more  than  twenty  years,  it  was  finally  abrogated  in 

*  See  2d  Vol.  p.  13. 
+  2d  Vol.  p.  449. 


0 


PREFACE.  Vll 

1693.  By  one  of  its  provisions  the  eldest  Lord  Proprietor  was  called  Pala- 
tine, and  the  style  of  the  enactments  by  the  Grand,  or  as  it  was  afterwards 
called  the  General,  Assembly,  during  the  whole  of  the  Proprietary  government 
was  thus  —  "  Be  it  enacted  by  his  Excellency  the  Palatine  and  the  rest  of  the 
true  and  absolute  Lords  Proprietors  of  Carolina,  by  and  with  the  advice  and 
consent  of  the  rest  of  the  members  of  the  General  Assembly  now  met 
at  for  the  northeast  part  of  the  said  province,  and  it  is  hereby  enacted 

by  the  authority  of  the    same."     The  acts  were  signed  by  the  governor,  by 
the  deputies  of  the  Lords  Proprietors,  each  proprietor  having  one  deputy,  and 
by  the   speaker  of  the  house  of  delegates.     No  record  is  to  be  found  in  any 
of  our  pubhc  offices  of  acts  passed  prior  to  the  session  of  "  a  General  Bien- 
nial Assembly,  held  at  the  house  of  Captain  Richard  Sanderson  at  Little  River, 
begun  the  seventeenth  day  of  November  1715  and  continued,  by    several  ad- 
journments, until  the  nineteenth  day  of  January  1716."     It  seems  that  a  revi- 
sal  of  all  the  acts  of  the  assembly  up  to  that  period  had  been  made  under  the 
directions  of  an  act    of  the  preceding  session,  which  is   not   now  extant.      A 
manuscript  copy  of  the  acts  of  1715,  much  mutilated,  is  on  file  in  the  office 
of  the  secretary  of  state  of  North  Carolina.     Among  these  acts  is  one  entitled 
"An  Act  for  y®  confirmation  of  y^  laws  passed  this  session  of  Assembly  and 
for  repealing  all  former  laws  not  herein  particularly  expressed."     After  this 
preamble  "  Whereas  in  pursuance   to  an   Act  of  Assembly  made  and  ratified 
y''  sixth  day  of  November  last  past  the  ancient  standing  laws  of  this  Govern- 
ment have  been  carefully  revised,"  it   enacts  "  That  all  laws  heretofore  made 
within  this  province,  such  only  excepted  as  by  their  particular  titles  are  hereby 
expressly  continued  and  revived,  are  and  stand  hereby  repealed,  annulled  and 
void,  and  that  all  laws  now  made,  passed  and  confirmed  this  present  session  of 
Assembly,  together  with  such  other  as  are  hereafter  mentioned  to  be  continued, 
shall  be  of  full  force  and  shall  be  henceforward  deemed  taken  and  adjudged  as 
the  body  of  the  laws  of  this  Government  and  no  other  heretofore  made."     It 
then  provides  for  rights  acquired  under  the  acts    repealed,  specifies  the   acts  to 
be  continued  in  force,  and  goes  on  to  declare  — "  That  the  chief  justice  and  the 
clerk    of  each  and  every  precinct  court  shall  take  care  that  the  transcript  or 
book  of  laws  deposited  in  his  or  their  custody  shall  be  constantly  laid  open  up- 
on the  court  table  during  the  sitting  of  the  court  for  the  perusal  of  such  members 
of  the  court  or  other  persons  litigating  causes  therein  as  shall  have  occasion  so 
to  do  " — and   also  "that  the  clerk  of  each  court  shall  at  the  next  court  after 
receipt  thereof  publicly  and  in  open  court  read  over  the  same  and  so  yearly  at 


Vm  PREFACE. 

the  first  court  next  following  the  first  day  of  May  under  the  penalty  of  five 
pounds  for  such  neglect."  A  number  of  well  drawn  and  important  acts 
were  passed  at  this  session,  among  which  may  be  mentioned  one,  "  An  Act 
concerning  old  titles  of  lands  and  for  limitation  of  actions  and  for  avoiding  suits 
in  law,"  the  provisions  of  which,  with  slight  alterations,  have  continued  in 
force  to  the  present  day. 

On  the  twentyfifth  day  of  July,  1729,  seven  of  the  eight  proprietors  of  Caro- 
lina, ia  consideration  of  seventeen  thousand  five  hundred  pounds  sterling,  con- 
veyed all  their  rights,  privileges  and  franchises  to  George  the  Second,  King  of 
Great  Britain  ;  and  Earl  Carteret,  afterwards  Lord  Granville,  the  eighth  lord 
proprietor,  conveyed  all  his  right  of  jurisdictiou  over  the  said  province  or 
colony,  reserving  his  one  eighth  part  of  the  soil  and  territorial  rights.  The 
proprietary  government  then  ceased  and  the  regal  government  commenced.. 
The  last  General  Assembly  held  under  the  proprietary  government  met  at  Eden- 
ton  on  the  27th  day  of  November,  1729,  and  the  first  under  the  royal  government 
met  at  the  same  place  in  the  year  1734.  It  may  be  proper  here  to  remark, 
(though  there  is  some  confusion  in  history  as  to  this  point,)  that  the  division 
into  North  and  South  Carolina  had  probably  been  consummated  before  or 
about  the  year  1700.  George  Burrington  was  appointed  by  the  king  on 
the  twentyninth  April,  1730,  the  first  royal  governor.  His  council  consisted 
of  seven  members,  three  of  whom  with  the  governor  formed  a  quorum.  They 
were  appointed  by  the  crown,  except  that  the  governor  and  council  might 
temporarily  fill  vacancies,  and  constituted  the  first  branch  of  the  legisJature. 
Burrington  having  abdicated,  Gabriel  Johnston  was  appointed  governor,  the 
ablest  of  all  the  colonial  governors,  not  less  distinguished  for  his  energy  and 
prudence  than  for  his  extensive  classical  and  scientific  attainments.  He  con- 
tinued in  office  from  1734  till  his  death  in  1752.  During  this  period  the  style 
of  enactment  was  as  follows  —  "  We  pray  that  it  maybe  enacted  and  be  it 
enacted  by  his  Excellency  Gabriel  Jolinston,  Esq.,  Governor,  by  and  with  the 
advice  and  consent  of  his  Majesty's  council  and  General  Assembly  of  this 
province  and  it  is  hereby  enacted  by  the  authority  of  the  same."  After  the 
death  of  Governor  Johnston,  Matthew  Rowan  first  as  president,  and  then  suc- 
cessively Arthur  Dobbs,  William  Tryon  and  Josiah  Martin  as  governors,  pre- 
sided over  the  province  until  the  revolution  in  1776.  The  style  of  enactment 
was  changed  after  the  year  1753.  It  was  then  "Be  it  enacted  by  the 
Governor,  Council  and  Assembly  and  by  the  authority  of  the  same."  The 
acts    were   signed  by  the  governor,  president    of  the    council  and  speaker  of 


PREFACE.  IX 

the   assembly,    the   council  and  assembly  being  separate   bodies,    and    were 
subject  to  the  approval  or  disapproval  of  the  king  in   council.     At  the  session 
of  the  General  Assembly  held  at  Nev^'bern  on  the  seventh  day  of  March,  1746, 
after  a  preamble  that  "  Whereas  for  want  of  the  laws  of  this  Province  being 
revised  and  printed,  the  magistrates  are  often  at  a  loss  how  to  discharge  their 
duty,  and  the   people  transgress  many  of  them  through  want  of  knowing  the 
same/' it  is  enacted,  "That  the   Honorable  Edward  Mosely,  Esq.,  Samuel 
Swann,  Esq.,  the  Honorable  Enoch   Hall,  Esq.,  and  Mr  Thomas  Barker,  or 
the  majority  of  them,  be  and  they  are  hereby  nominated  and   appointed  com- 
missioners to  revise   and  print  the  several  acts  of  assembly  in    force  in  this 
province."     Tiiey  are  required  to    "  revise  the   said    acts   of  assembly,   and 
compile  them  into  one  body,  and  make  an  index,  marginal  notes  and  references 
thereto,  arid  to  lay  the   same  before  the  next  succeeding  General  Assembly 
after  they  shall  have  so  revised  and  compiled  them,  to  be   ratified  and  confirm- 
ed."    By  subsequent  sections  the  laws  so  revised  and  ratified  are  to  be  printed 
and  distributed,  and  the  copies  so  printed  are  to  be  received  in  evidence  before 
any  judicature.     This  act  was    passed  on   the  earnest  and  repeated  recom- 
mendations   of    Governor    Johnston.      Of  the    commissioners    so  appointed, 
Edward  Mosely  and  Samuel    Swann  alone  appear  to  have  acted,  and  Mosely 
having  died   before  the   completion  of  the   work,  Samuel    Swann  reported  to 
the  General  Assembly  at    their  session    on   the   sixteenth  of  October,   1749. 
At  that  session  an  act  was  passed  to  confirm  this  revisal.      The  preamble  states 
that  "Whereas  the  whole  body  of  the  laws  of  this   Province   to  the   seventh 
day  of  March  in   the  year  of  our    Lord    one   thousand  seven  hundred  and 
fortysix  have,  in  pursuance  of  the    act,  &c.  &c.,  been  carefully  compiled  and 
revised,  and  the  said  revisal  laid  before  both  houses  of  this  present  Assembly 
and    approved  of  by  the  said    houses."     The    act   then   recites  the  acts  re- 
vised and  confirmed,  directs  them  to  be  printed  and  the  printed   copies  to  be 
evidence.     It  repeals  all  acts  not  confirmed,  and  saves  the   rights  of  parties, 
&c.      In  pursuance  of  this  act,  the  code  of  laws  so  revised  was  printed  and 
published  at  Newbern  by  James  Davis  in  the  year  1752,  under  the   following 
title  :   "  A  Collection  of  all  the   public   Acts  of  x\ssembly  of  the  Province  of 
North  Carolina,  now  in  force  and  use  ;  together  with  the  titles  of  all  such  laws 
as  are  obsolete,  expired  or  repealed  ;  and  also  an  exact  table  of  the  titles  of 
the  Acts  in  force.     Revised  by   Commissioners  appointed  by  an  Act    of  the 
General  Assembly  of  the  said    Province    for  that  purpose,  and  examined  with 
the  records  and  confirmed  in  full  Assembly.     Newbern — Printed  by  James 

VOL.   I.  B 


X  PREFACE. 

Davis  :  MDCCLII."  Davis  was  the  first  public  printer,  erected  the  first  print- 
ing press,  and  this  was  the  first  book  printed,  in  North  CaroHna.  It  is  said  by- 
Martin  in  his  history  that  this  act  confirming  Swann's  revisal  was,  through 
some  jealousy  of  the  General  Assembly,  disapproved  by  the  king  in  council. 
Up  to  this  period  the  acts  of  the  assembly  had  been  promulgated  in  manu- 
script copies  which  were  transmitted  to  the  judges  and  clerks  of  the  several 
courts,  and  directed  to  be  read  annually  openly  in  each  court.  Another  edi- 
tion of  the  public  laws  was  pubUshed  by  James  Davis  at  Newbern  in  1765, 
dedicated  to  Governor  Tryon  ;  and  still  another  in  1773,  dedicated  to  Governor 
Martin.  These  were  both  on  private  account.  Since  the  revolution  the  acts 
of  assembly  have  been  regularly  printed  and  distributed  at  the  end  of  each 
session.  The  last  session  of  the  General  Assembly  under  the  royal  govern- 
ment, whose  proceedings  are  on  record,  was  held  at  Newbern  on  the  second 
day  of  March,  1774,  and  its  acts  are  signed  by  Josiah  Martin,  governor, 
James  Hasell,  president,  and  John  Harvey,  speaker,  on  the  nineteenth  of 
March,  1774. 

The  assembly  met  again  in  April,  1775  ;  but  was  immediately  dissolved  by 
the  governor.    A  meeting  of  deputies  from  the  different  counties  had  been  held 
in  August,  1774,  and  by  adjournment  reassembled  in  April,  1775.     The  dep- 
uties again   met   in  convention  in  August,  1775,  and   appointed  a   provincial 
council  consisting  of  Samuel  Johnston,  Cornelius  Harnet,  Samuel  Ashe,  Ab- 
ner  Nash,  James  Coor,  Thomas  Jones,  Whitmill  Hill,  William  Jones,  Thom- 
as Jones,  Thomas  Person,  John  Kinchen,    Samuel   Spencer  and  Waightstill 
Avery.     The  revolution  was  then  in  full  progress.      The  Mecklenburg  Decla- 
ration of  Independence  was  signed  on  the  twentieth  day  of  May,  1775.    Dep- 
uties had  been  sent  to  the  continental  congress  in  1774  and  1775.     The  Dec- 
laration of  Independence  by  the  United  States,  on  the  fourth  of  July,  1776, 
was  proclaimed  at  Halifax  on  the  first  of  August  of  the  same  year,  by  direc- 
tion of  the    council  of  safety.      "  A  congress  of  the  representatives  of  the 
freemen  of  the  State  of  North  Carolina,  assembled  at  Halifax  the  seventeenth 
day  of  December,  in  the  year  1776,  for  the  purpose  of  establishing  a  consti- 
tution or  form  of  government  for  the  said  State."     Besides  adopting  the  con- 
stitution, this  congress  performed  the  functions  of  an  ordinary  legislature,  its 
legislative  acts,  however,  being  generally  limited  to  the  end  of  the  next  Gen- 
eral Assembly.     These  acts  were  styled  ordinances.     Richard  Caswell,  a  dis- 
tinguished patriot  and  soldier,  was  the  president.     Among  others,  an  ordinance 
was   passed  directing  "  That   Thomas   Jones,   Samuel  Johnston,   Archibald 


PREFACE.  XI 

Maclaine,  James  Iredell,  Abner  Nash,  Christopher  Neale,  Samuel  Ashe, 
Waightstill  Avery,  Samuel  Spencer,  Jasper  Charlton  and  John  Penn,  Es- 
quires, be  appointed  to  revise  and  consider  all  such  statutes  and  acts  of  assem- 
bly as  are,  or  have  been  in  force  and  use  in  North  Carolina,  and  to  prepare 
such  bills  to  be  passed  into  laws  as  may  be  consistent  with  the  genius  of  a  free 
people,  that  form  of  government  which  we  have  adopted,  and  our  local  situa- 
tion, and  to  lay  the  same  before  the  next  General  Assembly  for  their  appro- 
bation." It  is  not  now  known  how  many  of  these  commissioners  accepted 
this  trust,  or  what  share  of  its  execution  was  borne  by  any  one  of  them,  but 
the  fruits  of  their  labors  are  manifest  in  the  laws  passed  in  the  years  immedi- 
ately succeeding,  laws  which  have  received  repeated  encomiums  for  the  ability 
and  skill  and  accuracy  with  which  they  are  drawn.  The  style  of  enactment 
was  now  changed,  so  as  to  read  "  Be  it  enacted  by  the  General  Assembly  of 
the  State  of  North  Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the 
same,"  which  style  has  ever  since  been  continued. 

By  an  act  passed  in  1715,  it  was  declared  that  "  the  common  law  is,  and 
shall  be  in  force  in  this  government,"  except  such  parts  as  relate  to  the  prac- 
tice in  courts,  which  were  to  be  supplied  by  the  general  court,  subject  to  the 
approval  of  the  governor  and  council.  It  is  also  declared  that  "  all  statute 
laws  of  England  providing  for  the  privileges  of  the  people,  as  also  all  statute 
laws  made  for  limitation  of  actions,  and  preventing  of  vexatious  law  suits,  and 
for  preventing  immorality  and  fraud,  and  confirming  inheritances  and  titles  of 
land,  are  and  shall  be  in  force  here,  although  this  province  or  the  plantations 
in  general  are  not  named." 

By  an  act  passed  in  1749,  the  statutes  of  Great  Britain  which  are  to  be  in 
force  are  particularly  enumerated,  and  the  common  law  declared  to  be  in  force 
with  certain  exceptions.  And  by  an  act  passed  in  1778,  reciting  that  "  where- 
as doubts  may  arise  upon  the  revolution  in  government  whether  any,  and  what 
laws  continue  in  force  here,"  it  is  enacted  "  That  all  such  statutes,  and  such 
parts  of  the  common  law,  as  were  heretofore  in  force  and  use  within  this  ter- 
ritory, and  all  the  acts  of  the  late  General  Assemblies  thereof,  or  so  much  of 
the  said  statutes,  common  law  and  acts  of  assembly,  as  are  not  destructive  of, 
repugnant  to,  or  inconsistent  with  the  freedom  and  independence  of  this  State 
and  the  form  of  government  therein  established,  and  which  have  not  been 
otherwise  provided  for,  in  the  whole  or  in  part,  not  abrogated,  repealed,  ex- 
pired or  become  obsolete,  are  hereby  declared  to  be  in  full  force  in  this 
State." 


Xll  PREFACE. 

At  the  session  of  the  General  Assembly  in  1787,  it  was  enacted  "  That 
James  Iredell  be,  and  he  is  hereby  appointed  a  commissioner  to  revise  and 
compile  the  acts  of  the  General  Assemblies  of  the  late  Province  and  present 
State  of  North  Carolina,  and  to  insert  the  charter  from  the  crown  of  Great 
Britain,  &c. — and  further,  the  said  commissioner  is  hereby  authorized  and  di- 
rected, in  revising  and  collecting  said  acts,  to  leave  out  all  laws  repealed  or  ob- 
solete, all  private  acts,  and  all  other  acts  on  which  no  question  of  property  can 
arise  :  and  further,  the  said  commissioner  is  hereby  required  to  see  the  said 
acts  printed  in  the  same  order  and  in  the  same  words  in  which  they  now  stand, 
with  marginal  notes  of  the  contents  of  each  section,  a  marginal  reference,  and 
a  copious  general  index  with  reference  to  each  act,  and  the  contents  of  each 
section."  This  duty  was  performed  by  the  commissioner  appointed,  and  the 
laws  so  revised  printed  by  Hodge  and  Wills,  at  Edenton,  in  1789,  including 
the  acts  of  1788.  It  was  approved  in  every  respect  by  an  act  passed  in  1791, 
and  has  since  been  commonly  known  as  "  Iredell's  Revisal."  In  the  year  1792, 
Francois  Xavier  Martin,  in  obedience  to  a  resolution  of  the  General  Assembly 
of  the  preceding  year,  published  a  "  Collection  of  the  statutes  of  the  Parlia- 
ment of  England  in  force  in  the  State  of  North  Carolina,"  of  which  work  in 
may  only  be  remarked  that  it  was  utterly  unworthy  of  the  talents  and  industry 
of  the  distinguished  compiler,  omitting  many  important  statutes,  always  in 
force,  and  inserting  many  others,  which  never  were,  and  never  could  have  been 
in  force,  either  in  the  Province  or  in  the  State  of  North  Carolina.  In  the 
year  1794,  also  in  pursuance  of  a  resolution  of  the  General  Assembly  of  the 
preceding  year,  the  same  gentleman  published  "  A  collection  of  the  private 
acts  of  the  General  Assembly,  from  the  year  1715  to  the  year  1790,  inclusive, 
now  in  force  and  use."  In  1800,  John  Haywood,  one  of  the  judges  of  the 
superior  courts  of  law,  published  "  A  Manual  of  the  laws  of  North  Caroli- 
na, arranged  under  distinct  heads,  in  alphabetical  order  ;  with  references  from 
one  head  to  another  when  a  subject  is  mentioned  in  any  other  part  of  the  book 
than  under  the  distinct  head  to  which  it  belongs."  This  work  was  a  great 
favorite  with  the  public,  and  passed  through  several  editions.  In  1803,  it  was 
resolved  by  the  General  Assembly  "  that  Francois  Xavier  Martin  collect  and 
revise  the  public  acts  passed  since  the  pubhcation  of  Judge  Iredell's  Revisal, 
to  the  end  of  the  present  session  inclusive  ;  which  said  revisal  shall  connect 
the  acts  passed  since  Judge  Iredell's  by  notes  and  remarks,  adverting  to  such 
as  appear  to  have  been  virtually  repealed,  and  retaining  such  as  are  not  express- 
ly so,  and  cause  his  said  revisal  to  be  printed."     This  revisal  was  prepared 


> 


PREFACE.  Xlll 

and  published  by  Mr  Martin,  and  approved  by  the  succeeding  legislature.  At 
the  session  of  the  General  Assembly  in  1817,  it  was  enacted,  "  That  a  com- 
mittee of  three  persons  be  appointed  by  joint  ballot  of  both  houses,  whose 
duty  it  shall  be  to  revise  and  consolidate  the  public  acts,  and  parts  of  acts  of 
the  General  Assembly  of  this  State  heretofore  passed,  or  which  may  be  pass- 
ed before  the  completion  of  their  work,"  and  also,  "  That  it  shall  be  the  duty 
of  said  commissioners  to  enumerate  and  specify  those  statutes  and  parts  of 
statutes  of  Great  Britian,  which  are  in  force  within  this  State."  The  commis- 
sioners appointed  were  John  Louis  Taylor,  chief  justice  of  the  supreme  court, 
Henry  Potter,  judge  of  the  district  court  of  the  United  States,  and  Bartlet 
Yancy,  speaker  of  the  senate.  The  revisal,  completed  by  these  gentlemen 
after  the  manner  of  Iredell's  revisal,  was  ordered  by  the  legislature  to  be  pub- 
lished, and  was  published  in  1821,  under  the  superintendence  of  Judge  Potter, 
the  acts  of  1820  being  included.  This  work  has  usually  been  called  "  the 
Revised  Code,"  or  the  "  New  Revisal." 

In  concluding  this  sketch,  the  undersigned  will  offer  a  brief  notice  of 
the  revisal  now  published,  which  differs  in  its  character  from  any  hereto- 
fore executed.  At  the  session  of  the  General  Assembly  in  1833,  it  was 
enacted,  "  that  three  commissioners  be  appointed  by  the  governor  of  the 
State  to  collate,  digest  and  revise,  all  the  public  statute  laws  of  this  State, 
commencing  with  the  earliest  English  statutes  now  in  force,  and  including 
those  which  may  be  enacted  during  the  present  session  of  this  General 
Assembly  ;  that  in  the  performance  of  this  duty  they  shall  carefully  collect 
and  reduce  into  one  act  the  different  acts,  and  parts  of  acts,  which,  from 
similarity  of  subject  ought,  in  their  judgment,  to  be  so  arranged  and  con- 
sohdated,  distributing  the  same  under  such  titles,  divisions  and  sections  as 
they  shall  think  proper,  omitting  all  such  acts,  and  parts  of  acts  before  passed 
as  shall  have  either  expired  by  their  own  limitation,  become  obsolete,  or  been 
repealed  ;  that  in  every  other  respect  they  shall  complete  the  said  revision  in 
such  manner  as  to  them  shall  seem  most  useful  and  proper  to  render  said 
acts  more  plain  and  easy  to  be  understood  ;  and  that,  from  time  to  time  they 
shall  lay  before  the  legislature  the  acts  so  arranged  and  revised  by  them, 
to  be  re-enacted,  if  the  legislature  shall  so  determine."  This  act,  though 
such  a  measure  had  long  been  desired  by  many  intelligent  citizens,  owed  its 
origin  at  this  period,  principally  to  the  exertions  of  Governor  Swain,  who, 
in  his  annual  message  to  the  legislature  had  earnestly  and  eloquently  urged  its 
importance,   and   who    manifested   a   deep   solicitude  for  its  success. 


XIV  PREFACE. 

Soon  after  the  passage   of  the  act,  the  performance  of  the  important  duties 
which  it  required,  was  entrusted  to  the  late  Gavin  Hogg,  Esquire,  of  the  city 
of  Raleigh,  in  conjunction  with  the  undersigned.     At  an  early  period  after  their 
appointment,  the   commissioners  held  a  meeting,  in  which  they  made  a  curso- 
ry examination  of  the  acts  of  assembly,  and  the  British  statutes  in  force  in 
this  State,  and  agreed  upon  the  plan  upon  which  the  revisal  should  be  conduct- 
ed.    With  these  preliminary   arrangements,  Mr  Hogg's  connection  with  the 
work  ceased.      Severe  and  protracted  ill  health  prevented  his  further  discharge 
of  duties,  upon  the  performance  of  which  he  had  entered  with  zeal,  and  which 
no  one  was  better  qualified  to  perform  in  a  manner  creditable  to  himself  and 
useful  to  the  public.     In  the  winter  following,  he  resigned  his  commission,  and 
the  Hon.  Frederic  Nash,  of  Hillsborough,  now  one  of  the  judges  of  the  supe- 
rior courts  of  this  State,  but  then  at  the  bar,  was  appointed  to  supply  the  va- 
cancy.    Reports  of  the  plan  and  progress  of  the  work  were  made  by  the  com- 
missioners to   the  governor,  and  through  him  to  the  legislature  at  its  respective 
sessions  in  1834  and  1835.     The  plan  adopted  by  the  commissioners  was,  in 
the  language  of  one  of  their  reports,   "  simply  to  digest  and   consolidate  into 
one  act,  all  the  various  statute  laws  relating  to  one  subject,  occasionally  to  alter 
vicious  and  inadvertent  phraseology,  and  to  insert  into  the  body  of  the  statute 
such  new  provisions  as  seemed  to  them  manifestly  proper  ;"  and  as   regarded 
the  British  statutes,   "  to  incorporate  them  in  acts   distributed  according  to  the 
subject  to  which  they  relate,  clothing  them  in  a  modern  garb."     Upon  the  re- 
port made  at  the  session  of  1834  no  definite  action  was  taken  by  the  legisla- 
ture, but  that  submitted  at  the   subsequent  session,  was  referred,  together  with 
several  revised  acts  which  had  accompanied  it,  to  a  joint  select  committee  of 
both  houses,  who,  after  having  had  the   subject  under   consideration,  reported 
that  they  deemed  it  inexpedient  for  the  legislature  at  that  session,  "  to  attempt 
the  re-enactment  of  any  portion  of  the  digest  which  had  been  completed." 
They,  then,  after  expressing  themselves  "  from  a  cursory  examination,  high- 
ly gratified  both  with  the  plan  of  the  digest,  which  had  been  adopted,  and  the 
mode  of  its  execution,"  recommended  that  the  time  for  completing  the  revisal, 
which  in  the  original  act  had  been  limited  to  two  years,  should  be  extended  to 
the  first  day  of  December,  1836  ;  that  the  revised  acts  which  had  been  sub- 
mitted  by  the  commissioners  should  be  returned  to  them,  and  that  when  they 
should  have  completed  the  residue,  they  should  procure  two  hundred  copies  of 
the  whole  to  be  printed,  and  have  them  deposited  in  the  governor's  office  for 
tbe  use  of  the  next  General  Assembly.     A  bill  for  that  purpose  was  accord- 
ingly introduced,  and  passed,  and  at  the  session  of  1836,  the  whole  work  was 


PREFACE.  XV 

reported  to  the  legislature,  and  with  the  report  were  transmitted  the  required 
^     number  of  printed  copies  of  each  of  the  revised  acts  for  the  use  of  the  mem- 
"^bers.     These  acts,  with  the  accompanying  report,  were  referred  to  a  joint  se- 
lect committee  of  six  members  from  each  house,  by  whom  they  were  examin- 
ed and  reported  from  time  to  time,  to  one  or  the  other  of  the  houses,  with  such 
amendments  as  the  committee  thought  proper  to  suggest,  and  were  then  passed 
separately,  according  to  the  forms  usual  in  passing  bills,  except  that  they  were 
not  required  to  be  engrossed  after  passing  one  house  before  they  were  sent  to 
the  other.    After  the  revised  statutes  had  been  all  acted  upon  by  the  legislature, 
an  act  entitled  "  An  act  concerning  the  Revised  Statutes"  was  passed,  which 
prescribes  the  time  when  they  shall  go  into  operation,  provides  for  their  pub- 
lication and  distribution,  repeals  all  the  British  acts,  and  all  the  acts  of  our  own 
legislature,  the  subjects  of  which  had  been  revised,  and  directs  that  when  pub- 
lished, the  printed  copies  shall  be  received  as  evidence  of  the  law.    From  this 
it  will  be  perceived  that  the  work  now  presented  to  the  public  has  the  very 
highest  character  of  authenticity  and  authority. 

It  remains  only  for  the  undersigned  to  add  a  few  remarks  as  to  the  manner 
in  which  their  duties  as  superintendents  of  publication  have  been  discharged. 
By  reference  to  the  ninth  and  tenth  sections  of  the  "Act  concerning  the  Revised 
Statutes,"  will  be  seen  the  authority  under  which  they  were  appointed,  and  the 
particular  duties  prescribed  them.      They  have  endeavored  to  comply  strictly 
with  the  requisitions  of  that  act.     How  far  they  have  succeeded,  it  must  be  for 
others  to  determine.     As  regards  the  style  of  execution,  and  arrangement  of 
the  work,  it  will  show  for  itself.     The  "Act  concerning  the  Revised  Statutes  " 
has  been  placed  as  chapter  first  of  the    statutes  contained  in  the   first  volume, 
and  the    revised  acts  themselves  follow  in  alphabetical  order.      The  other  pub- 
lic acts,  which  were  passed  at  the  same  session,  and  required  to  be  inserted  in 
the   same    volume   with  the   revised  statutes,  have  been   either  incorporated 
with  them  or  published  as  separate  chapters  under  the  same  general  title  where 
similarity  of  subject  admitted,  or  have   been   placed  under  distinct  heads  but 
still  in  their  proper  alphabetical  order.     In  annexing  the  references  to  the  de- 
cisions of  the  supreme  court,   it  was  intended  to  place  the  cases  refeiTed  to, 
in  the  margin  opposite  to  the  sections  to  which  they  related,  but  it  was  found 
that  it  could  not  be  done  without  too  much  encumbering  the  page,  and  the  re- 
ferences were  therefore  placed  at  the  end  of  the   respective  chapters,  but  still 
noting  the  particular  sections  which  they  are  designed  to  elucidate. 

In  preparing  the  materials  directed  to  be  published  in  the  second  volume,  the 
superintendents  found  some  difficulty  in  ascertaining  and  determining  what  acts 


XVI  PREFACE. 

relating  to  navigation  companies  were  now  "  in  force  and  use  "  so  as  to  require 
their  insertion.  They  were  aware  that  there  were  several  charters  of  those 
companies  still  in  legal  existence,  but  they  had  reasons  to  believe  that  the 
companies  were  so  near  a  final  extinction  from  nonuser  or  abandonment,  that 
it  was  entirely  useless  to  retain  them.  As  they  found  that  this  volume  when 
going  to  press  would  not  be  so  large  as  they  anticipated,  tlie  superintendents 
have  ventured  to  insert  in  an  appendix  several  articles  which  were  deemed  not 
inappropriate  to  such  a  work.  These  articles,  comprising  among  others  the 
great  charters  of  English  and  American  liberty,  not  already  inserted,  will,  it 
is  hoped,  be  found  neither  uninteresting  nor  uninstructive  ;  and  as  those  of  them, 
.  which  are  not  entirely  new,  are  not  often  seen  in  works  easily  accessible  to  the 
public,  it  is  trusted,  that  their  appearance  in  their  present  position  will  be 
favorably  received. 

In  the  progress  of  these  volumes  through  the  press,  one  or  the  other  of  the 
superintendents  has  constantly  attended  to  them,  and  every  sheet  has  undergone 
his  supervision  and  correction.  With  what  accuracy  this  part  of  their  duty  has 
been  performed,  it  is  not  for  them  to  say.  They  have  anxiously  endeavored 
to  have  the  typographical  part  of  the  work  perfect,  so  far  as  their  exertions 
could  contribute  towards  so  desirable  an  object.  But  yet  from  the  great  de- 
sire to  have  the  volumes  ready  for  distribution  at  as  early  a  day  as  possible, 
their  publication  has  been  hastened  in  a  manner  inconsistent  with  entire  cor- 
rectness. It  is  hoped  and  believed  however,  that  no  error  will  be  found,  par- 
ticularly in  the  body  of  the  work,  at  all  affecting  the  sense  of  the  passage  in 
which  it  may  occur.  It  may  be  proper  to  mention  here  that  the  revised  and 
other  public  acts  contained  in  the  first  volume  of  this  work,  were  regularly  rat- 
ified in  the  usual  form  and  signed  by  Messrs  Hugh  Waddell,  speaker  of  the 
senate,  and  WiUiam  H.  Haywood,  Jun.,  speaker  of  the  house  of  commons, 
but  the  certificate  of  ratification  has  not  been  retained,  because  as  the  acts  were 
passed  separately,  it  would  have  presented  a  useless  repetition. 

With  these  explanations  and  remarks  the  "  Revised  Statutes  "  are  submitted 
to  a  generous  pubhc,  with  the  hope,  that  with  the  corrections  and  amendments 
which  they  received  from  the  legislature  and  the  sanction  given  to  them  by 
that  body,  they  will  contribute  in  some  degree  at  least,  to  the  object  for  which 
they  were  designed,  a  simplification  of  the  Statute  Law  and  an  extension  of 
its  knowledge  among  the  people. 

JAMES  IREDELL. 
WILL  :  H.  BATTLE. 


TABLE    OF    CONTENTS. 


Mecklenburg  Declaration  of  Independence,  ...  1 

Names  of  Delegates  to  State  Congress  in  1776,  -  -  -         5 

Bill  of  Rights  and  State  Constitution,  with  the  Amendments,     -  7 

Constitution  of  the  United  States,  with  the  Abiendments,    -  -       28 

49 

-  55 
58 

-  60 
67 

-  70 
79 

-  80 
82 

"   86 
89 

-  89 
92 

-  96 
97 

-  99 
-    100 

-  102 
103 

-  107 
109 

-  110 
111 

-  114 
116 

-  118 
122 

-  122 


Chapter  1. 

Revised  Statutes, 

. 

2. 

Abatement,    -             -             - 

- 

3. 

Amendment,          ... 

4. 

Appeals, 

- 

5. 

Apprentices,          ... 

6. 

Attachment, 

- 

7. 

Attorney  General  and  Solicitors, 

8. 

Attorneys  at  Law, 

- 

9. 

Auctions  and  Auctioneers, 

10. 

Bail  in  Civil  Cases, 

- 

11. 

Bank  Notes, 

12. 

Bastard  Children, 

*B 

13. 

Bills,  Bonds  and  Promissory  Notes, 

14. 

Boats  and  Canoes,     - 

- 

15. 

Book  Debts,          ... 

16. 

Burning  Woods, 

- 

17. 

Cattle,  Horses  and  Hogs, 

18. 

Charities,       -             .             - 

- 

19. 

Clerks  of  the  County  and  Superior 

Courts 

20. 

Clerks  and  Masters  in  Equity, 

- 

21. 

Commissioners  of  Affidavits, 

22. 

Common  Law, 

- 

23. 

Comptroller,          ... 

24. 

Constables,     ... 

- 

25. 

Coroners,              ... 

26. 

Corporations, 

- 

27. 

County  Boundaries, 

28. 

County  Revenue  and  Charges, 

- 

VOL.  I. 

c 

XV  111 

CONTENTS. 

Chapter  29. 

County  Trustees,              -       "    - 

129 

30. 

Court  Houses,  Prisons  and  Stocks,     -             -             - 

-     132 

31. 

Courts,  County  and  Superior,        .... 

135 

'32. 

Courts  of  Equity,      .             -             .             -             - 

-     175 

33. 

Court,  Supreme,                -             -             - 

184 

34. 

Crimes  and  Punishments, 

-     189 

35. 

Criminal  Proceedings,      .             .             -             -             - 

214 

36. 

Currency,      -             -             - 

-    222 

37. 

Deeds  and  Conveyances,               .... 

223 

38. 

Descents,       ------ 

-    236 

39. 

Divorce  and  Alimony,      -             -             -             -             - 

238 

40. 

Draining  Low  Lands,             .             .             -             . 

-     242 

41. 

Electors  of  President  and  Vice  President, 

244 

42. 

Entries  and  Grants,  -             - 

-    248 

43. 

Estates,   ------- 

257 

44. 

Evidence,      ------ 

-    262 

45. 

Executions,           -..--- 

264 

46. 

Executors  and  Administrators,            -             -             - 

-    271 

47. 

Fairs,       .-.---- 

282 

48. 

Fences,          ------ 

-    283 

49. 

Forcible  Entry  and  Detainer,       .             -             -            - 

285 

50. 

Frauds  and  Fraudulent  Conveyances, 

-     287 

51. 

Gaming  Contracts,           .             _             .             -             - 

291 

52. 

General  Assembly,     -             -             -             -             - 

-     292 

53. 

Governor  and  Council,     -             -             -             -             - 

302 

54. 

Guardian  and  Ward,               -             - 

-    305 

55. 

Habeas  Corpus,    ------ 

314 

56. 

Hunting,        -             -             -             -             -             - 

-     317 

57. 

Idiots  and  Lunatics,          -             -             -             -             - 

318 

58. 

Insolvent  Debtors,      -             -             -             -             - 

-    320 

59. 

Inspections,           .-.--- 

329 

60. 

Internal  Improvements,           .             .             -             - 

-    346 

61. 

Do.             do.                -             -             -             -             - 

349 

62. 

Justices  of  the  Peace,              .... 

-    352 

63. 

Lands  of  Deceased  Debtors,         .             .             -             - 

362 

64. 

Legacies,  Filial  Portions  and  Distributive  Shares, 

-    368 

65. 

Limitations,          -             -             -             - 

371 

66. 

Literary  Fund,           -             .             .             -             . 

-    378 

67. 

Do.         do.     (Draining  Swamp  Lands,) 

379 

68. 

Do.         do.     (     Do.       Mattamuskeet  Lake,) 

-     382 

69. 

Do.         do.       -            -            -            -            -            - 

383 

70. 

Mad  Dogs,    ------ 

-    385 

71. 

Marriage,              -             -             -             - 

385 

72. 

Members  of  Congress,           -        ■    - 

-    388 

73. 

Militia,     ------- 

392 

CONTENTS.  XIX 

Chapter  74.  Mills  and  Millers,      -            -            -            -            -  -    420 

75.  Mines,      -----             -             -  425 

76.  Money  remaining  in  the  hands  of  Clerks  and  Sheriffs,  -     426 

77.  Names,    -             -             -             -             -             -             -  429 

78.  Notaries,        -             -             -             -             -             -  -     429 

79.  Oaths,      -------  430 

80.  Offices,           -             -             -             -             -             -  -     441 

81.  Official  Bonds, -  442 

82.  Ordinaries,    -------     445 

83.  Overseers,            -.--..  447 

84.  Oysters,         -             -             -             -             -             -  -     448 

85.  Partition,               ------  449 

86.  Patrol,            -             -             -            -             -             -  -     458 

87.  Pensions,               -             -             -             -             -            -  459 

88.  Pilots, 460 

89.  Poor,        .--..-.  471 

90.  Prisoners,       -------     477 

91.  Processioning,      ------  482 

92.  Public  Arms,              -             -             -             -             -  -     484 

93.  Do.      do.           -----            -  487 

94.  Public  Documents,     -             -             -             -             -  -     489 

95.  Public  Printing,   ------  489 

96.  Quarantine  and  Health,         -             -             -             -  -     492 

97.  Quo  Warranto  and  Mandamus,     -             -             -            -  498 

98.  Eegisters,       -             -             -             -            -             -  -     500 

99.  Religious  Societies  and  Congregations,     -             -             -  503 

100.  Repeal  of  Statutes,    -             -             -             -             -  -     506 

101.  Replevin,               ------  506 

102.  Revenue,        -             -             -            -             -            -  -     508 

103.  Rivers  and  Creeks,            -             -             -             -             -  533 

104.  Roads,  Ferries  and  Bridges,                -             -             -  -     536 

105.  Salaries  and  Fees,             -            -             -            -            -  548 

106.  Seamen,         -             -             -             -             -             -  -     560 

107.  Seat  of  Government,         ----..  562 

108.  Secretary  of  State,     ------     563 

109.  Sheriffs,   -------  564 

110.  Slander  of  Women,   -             -             -             -            -  -     570- 

111.  Slaves  and  Free  Persons  of  Color,             -            -            -  571 

112.  Strays,            -             -             -             -             -             -  -     593 

113.  Surety  and  Principal,        -----  597 

114.  Towns,           -             -             -             -            -             -  -     599 

115.  Treasurer,             ------  600 

116.  University,     -------     605 

117.  Usury,     -------  606 

118.  Vice  and  Immorality,  -----     607 


XX  CONTENTS. 

^■«^     Chapter  119.  Waste,  -  -  - 

™  120.  Weights  and  Measures, 

121.  Widows, 

122.  Wills  and  Testaments, 

123.  Wrecks, 

•Index,         -  ...  - 


t 

609 

- 

-  610 

- 

612 

- 

-  619 

• 

626 

_ 

-  631 

MECKIiENBtJRCi 

DECLARATION  OF  INDEPENDENCE, 

ADOPTED  ON  THE  TWENTIETH  OP  MAY,  1775. 


SHORT  NARRATIYE. 


In  the  spring  of  1775,  the  leading  characters  of  Mecklenburg 
county,  North  Carolina,  stimulated  by  that  enthusiastic  patriotism 
which  elevates  the  mind  above  considerations  of  individual  ag- 
grandizement, and  scorning  to  shelter  themselves  from  the  impend- 
ing storm  by  submission  to  lawless  power,  &c.  &c.  held  several 
detached  meetings,  in  each  of  which  the  individual  sentiments 
were,  "  that  the  cause  of  Boston  was  the  cause  of  all  ;  that  their 
destinies  were  indissolubly  connected  with  those  of  their  East- 
ern fellow-citizens — and  that  they  must  either  submit  to  all  the  im- 
positions which  an  unprincipled,  and  to  them  an  unrepresented, 
parliament  might  impose  —  or  support  their  brethren  who  were 
doomed  to  sustain  the  first  shock  of  that  power,  which,  if  suc- 
cessful there,  would  ultimately  overwhelm  all  in  the  common 
calamity."  Conformably  to  these  principles.  Colonel  T.  Polk, 
through  solicitation,  issued  an  order  to  each  captain's  company 
in  the  county  of  Mecklenburg,  (then  comprising  the  present  county 
of  Cabarrus,)  directing  each  militia  company  to  elect  two  persons, 
and  delegate  to  them  ample  power  to  devise  ways  and  means  to 
aid  and  assist  their  suffering  brethren  in  Boston,  and  also  generally 
to  adopt  measures  to  extricate  themselves  from  the  impending 
storm,  and  to  secure  unimpaired  their  inalienable  rights,  privileges 
and  liberties,  from  the  dominant  grasp  of  British  imposition  and 
tyranny. 

In  conformity  to  said  order,  on  the  19th  of  May,  1775,  the 
said  delegation  met  in  Charlotte,,  vested  w'th  unlimited  powers  ; 
at  which  time  official  news,  by  express,  arrived  of  the  battle  of 
Lexington  on  that  day  of  the  preceding  month.  Every  delegate 
felt  the  value  and  importance  of  the  prize,  and  the  awful  and  solemn 

VOL.    I.  1 


MECKLENBURG  DECLARATION  OF  INDEPENDENCE; 

crisis  which  had  arrived — every  bosom  swelled  with  indignation 
at  the  malice,  inveteracy,  and  insatiable  revenge,  developed  in 
the  late  attack  at  Lexington.  The  universal  sentiment  was  :  let 
us  not  flatter  ourselves  that  popular  harangues,  or  resolves,  that 
popular  vapour  will  avert  the  storm,  or  vanquish  our  common 
enemy — ^let  us  deliberate — ^let  us  calculate  the  issue — ^the  probable 
result ;  and  then  let  us  act  with  energy,  as  brethren  leagued  to 
preserve  our  property — our  lives — and  what  is  still  more  endear- 
ing, the  liberties  of  America.  Abraham  Alexander  was  then 
elected  chairman,  and  John  M'Knitt  Alexander,  clerk.  After 
free  and  full  discussion  .of  the  various  objects  for  which  the  dele- 
gation had  been  convened,  the  subjoined  resolutions  were  offered. 

A  number  of  by-laws  were  also  added,  merely  to  protect  the 
association  from  confusion,  and  to  regulate  their  general  conduct 
as  citizens.  After  sitting  in  the  court  house  all  night,  neither 
sleepy,  hungry,  nor  fatigued,  and  after  discussing  cA'^ery  paragraph, 
they  were  all  passed,  sanctioned,  and  decreed,  unanimously.,  about 
2  o'clock,  A.  M.,  May  20.  In  a  few  days,  a  deputation  of  said 
delegation  convened,  when  Capt.  James  Jack,  of  Charlotte,  was 
deputed  as  express  to  the  congress  at  Philadelphia,  with  a  copy  of 
said  resolves  and  proceedings,  together  with  a  letter  addressed  to  our 
three  representatives  there,  viz.  Richard  Caswell,  William 
Hooper,  and  Joseph  Hewes — under  express  injunction,  per- 
sonally, and  through  the  State  representation,  to  use  all  possible 
means  to  have  said  proceedings  sanctioned  and  approved  by  the 
general  congress.  On  the  return  of  Captain  Jack,  the  delegation 
learned  that  their  proceedings  were  individually  approved  by  the 
members  of  congress,  but  that  it  was  deemed  premature  to  lay  them 
before  the  house.  A  joint  letter  from  said  three  members  of  con- 
gress was  also  received,  complimentary  of  the  zeal  in  the  common 
cause,   and  recommending  perseverance,   order  and  energy. 

The  subsequent  harmony,  unanimity,  and  exertion  in  the  cause 
of  liberty  and  independence,  evidently  resulting  from  these  regula- 
tions, and  the  continued  exertion  of  said  delegation,  apparently 
tranquiUized  this  section  of  the  State,  and  met  with  the  concurrence 
and  high  approbation  of  the  council  of  safety,  who  held  their 
sessions  at  Newborn  and  Wilmington,  alternately,  and  who  con- 
firmed the  nominations  and  acts  of  the  delegation  in  their  official 
capacity. 

From  this  delegation  originated  the  court  of  inquiry  of  this 
county,  who  constituted  and  held  their  first  session  in  Charlotte  — 
they  then  held  their  meetings  regularly  at  Charlotte,  at  Col.  James 
Harris's,  and  at  Col.  Phifer's,  alternately,  one  week  at  each  place. 


MECKLENBURG   DECLARATION   OF  INDEPENDENCE. 

It  was  a  civil  court  founded  on  military  process.  Before  this 
judicature,  all  suspicious  persons  were  made  to  appear,  who  were 
formally  tried  and  banished,  or  continued  under  guard.  Its  juris- 
diction was  as  unlimited  as  toryism,  and  its  decrees  as  final  as  the 
confidence  and  patriotism  of  the  county.  Several  were  arrested 
and  brought  before  them  from  Lincoln,  Rowan  and  the  adjacent 
counties. 


DECLARATIOIY. 


NAMES  OF  THE  DELEGATES  PRESENT. 


COL.  THOMAS  POLK, 
EPHRAIM  BREVARD, 
HEZEKIAH  J.  BALCH, 
JOHN  PHIFER, 
JAMES.  HARRIS, 
WILLIAM  KENNON, 
JOHN  FORD, 
RICHARD  BARRY, 
HENRY  DOWNS, 
EZRA  ALEXANDER, 
WILLIAM  GRAHAM, 
JOHN  aUEARY, 
ABRAHAM  ALEXANDER, 


JOHN  M'KNITT  ALEXANDER, 
HEZEKIAH  ALEXANDER, 
ADAM  ALEXANDER, 
CHARLES  ALEXANDER, 
ZAOHEUS  WILSON,  Sen. 
WAIGHTSTIL  AVERY, 
BENJAMIN  PATTON, 
MATTHEW  M'CLURE, 
NEIL  MORRISON, 
ROBERT  IRWIN, 
JOHN  FLENNIKEN, 
DAVID  KEESE, 
RICHARD  HARRIS,  Sen. 


Abraham  Alexander  was  appointed  chairman,  and  John 
M'Knitt  Alexander,  clerk.  The  following  resolutions  were 
offered,  viz. 

1 .  Resolved,  That  whosoever  directly  or  indirectly  abetted,  or 
in  any  way,  form  or  manner,  countenanced  the  unchartered  and 
dangerous  invasion  of  our  rights,  as  claimed  by  Great  Britain,  is 
an  enemy  to  this  country,  to  America,  and  to  the  inherent  and  in- 
alienable rights  of  man. 

2.  Resolved,  That  we,  the  citizens  of  Mecklenburg  county, 
do  hereby  dissolve  the  poUtical  bands  which  have  connected  us  to 
the  mother  country,  and  hereby  absolve  ourselves  from  all  allegi- 
ance to  the  British  crown,  and  abjure  all  political  connection,  con- 
tract, or  association,  with  that  nation,  who  have  wantonly  trampled 
on  our  rights  and  liberties,  and  inhumanly  shed  the  blood  of 
American  patriots  at  Lexington., 

3.  Resolved,  That  we  do  hereby  declare  ourselves  a  free  and 
independent  people,  are,  and  of  right  ought  to  be,  a  sovereign 
and  self-governing  association,  under  the  control  of  no  power 
other  than  that  of  our  God  and  the  general  government  of  the 
congress  ;  to  the  maintenance  of  which  independence,  we  sol- 
emnly pledge  to  each  other  our  mutual  co-operation,  our  fives,  our 
fortunes,  and  our  most  sacred  honor. 


MECKLENBURG  DECLARATION  OF  INDEPENDENCE. 

4.  Resolved,  That  as  we  now  acknowledge  the  existence  and 
control  of  no  law  or  legal  officer,  civil  or  military,  within  this 
county,  we  do  hereby  ordain  and  adopt  as  a  rule  of  life,  all,  each 
and  every  of  our  former  laws, — wherein,  nevertheless,  the  crown 
of  Great  Britain  never  can  be  considered  as  holding  rights,  privi- 
leges, immunities  or  authority  therein. 

5.  Resolved,  That  it  is  further  decreed,  that  all,  each  and 
every  military  officer  in  this  county,  is  hereby  reinstated  in  his  for- 
mer command  and  authority,  he  acting  conformably  to  these  regu- 
lations. And  that  every  member  present,  of  this  delegation,  shall 
henceforth  be  a  civil  officer,  viz.  a  justice  of  the  peace,  in  the 
character  of  a  "  committee-man,^^  to  issue  process,  hear  and  deter- 
mine all  matters  of  controversy,  according  to  said  adopted  laws, 
and  to  preserve  peace,  union  and  harmony  in  said  county  ;  and 
to  use  every  exertion  to  spread  the  love  of  country  and  fire  of  free- 
dom throughout  America,  until  a  more  general  and  organized 
government  be  established  in  this  province. 

After  discussing  the  foregoing  resolves,  and  arranging  by- 
laws and  regulations  for  the  government  of  a  standing  committee 
of  public  safety,  who  were  selected  from  these  delegates,  the 
whole  proceedings  were  unanimously  adopted  and  signed.  A 
select  committee  was  then  appointed  to  draw  a  more  full  and  defi- 
nite statement  of  grievances,  and  a  more  formal  declaration  of 
indepenjjence.  The  delegation  then  adjourned  about  2  o'clockj 
A.  M,,  May  20, 


NAMES      OF     DELEGATES 


TO    THE 


STATE  CONGRESS  IN  1776. 


The  following  are  the  names  of  the  delegates  who  attended  the 
Congress,  which  met  at  Halifax,  the  12th  of  November,  1776, 
and  which  formed  and  adopted  the  Bill  of  Rights  and  Constitution 
of  the  State.  The  seats  of  those  whose  names  are  marked  *  were 
vacated  by  appointments  to  office.  Those  whose  names  are  mark- 
ed f  obtained  leave  of  absence  from  congress,  at  various  times, 
previous  to  the  adoption  of  the  Constitution.  Those  only  whose 
names  are  not  marked  were  present  when  the  Bill  of  Rights  and 
Constitution  finally  passed. 


Anson  County. 
THOMAS  WADE, 
DAVID  LOVE, 
WM.  PIGKET.t 

Beaufort  County. 

JOHN  BAUROW.t 
TttOS.   KESPESS, 
THOS.  RESPESS.Jun. 
FRANCIS  JONES, 
ROBERT  TRJPP. 

Bertie  County. 

WM.  GRAY, 
NOAH  H IN  TON, 
ZEDEKIAH  STONE. 

Bladen  County. 

THOS.  ROBESON, 
THOS.  OWEN, 
THOS.  AMIS, 
JAS.  COUNCIL. 

Brunswick  County. 
CORNELIUS  HARNETT, 
ARCH'D  McLEAN, 
LEWIS  DUPRE,t 
WM.  LORD. 

Bute  County. 

JAS.  DENTON, 
THOS.  EATON, 
PHILEMON  HAWKINS, 
BENJAMIN  SEAWELL, 
BENJAMIN  WARD. 

Carteret  County. 

SOL'N  SHEPPARD, 
BRICE  WILLIAMS, 
JNO.  EATON, 
THOS.  CHADWICK. 


Chowan  County. 
JAS.  BLOUNT, 
THOS.  HEN  BURY, 
THOS.  JONES, 
LUKE  SUMNER, 
JACOB  HUNTER.      ■ 

Chatham  County. 

AMBROSE  RAMSEY, 
JNO.  BIHDSONG, 
MIAL  SCUllLOCK, 
JOSIAH  HOGAN. 

Craven  County. 

WM  BRYAN, 
JNO.  BRYAN, 
CHRISTOPHER  NEALL, 
JNO.  TILGHiVlAN. 

Cumberland  County. 

ROBERT  ROWAN, 
PHILIP  ALSTON.t 
WM.  RAND, 
ROBERT  COBB. 

Currituck  County. 

SAMUEL  JARVIS,* 
JAS.  WHITE, 
KEDAR  MERCHANT, 
HOLLOWEI.L  WILLIAMS, 
THOS.  WILLIAMS. 


DoBBs  County. 

RICHARD  CASWELL, 
SIMON  BRIGHT. 
ABRAHAM  SHEPPARD, 
BENJAMIN    EXUM, 
ANDREW  BASS. 


NAMES   OF    DELEGATES. 


Duplin  County. 

JAS.  KENAN, 
THOMAS  GRAY.t 
WM.   DICKSON,' 
WM.  TAYLOR, 
JAMES  GILLESPIE, 

Edgcombe  County, 
WM.  HAYWOOD, 
ELISHA  BATTLE, 
JONAS  JOHNSTON, 
ISAAC  SESSUJMS, 
WM.  HORN. 

Geanville  County. 

THOS.  PERSON, 
ROBERT  LEWIS, 
MEMUCAN  HUNT, 
JOHN  OLIVER. 

Guilford  County. 

DAVID  CALDWELL, 
JOSEPH  HINES, 
CHARLES  BRUCE, 
RALPH  GORRELL, 
ISHAM  BROWDER. 

Halifax  County. 
JOHN  BRADFORD, 
JAME.S  HOGAN,* 
EGBERT  HAYWOOD, 
WILLIS  ALSTON, 
SAMUEL  WELDON, 
BENJAMIN  M'CULLOCH. 

Hartford  County. 

LA  WHENCE  BAKER t 
WM.  MURFREE, 
ROBEKT  SUMNER, 
DAY  RIDLEY, 
JAMES  WRIGHT. 

Hyde  County. 

JOSEPH  HANCOCK, 
JOHN  JORDAN, 
BENJAMIN  PARMERLE, 
AMBROSE  JONES. 

Johnston  County. 
NEED'M  Bf{YAN,  JuQ. 
JOHN  STEVENS, 
HENRY  RAINS, 
ALEXANDER  AVERYT. 

Martin  County. 

WM.  WILLIAMS, 
THOS.  HUN  TER, 
JNO  HARDISON, 
SAMUEL  SMITH  WICK. 

Mecklenburg  County. 
ROBERT  IKWIN, 
ZACHEUS  WILSON, 
HEZEKIAH  ALEXANDER.t 
WAIGHTSTIL  AVERY. 

New-Hanover  County. 
JOHN  ASHE, 
SAMUEL  ASHE, 
JOHN  DEVANE, 
SAiVlPSON  MO.SELEY, 
JOHN  HOLLINGSWORTH. 

Northampton  County. 
ALLEN  JONES, 
JA IVIES  INGRAM,* 
THOS.  PARKER, 
HOWELL  EDMUNDS. 


Onslow  County, 

JOHN  SPICER, 
THOS    JOHNSTON. 
BENAJAH  DOTY, 
EDWARD  STARKEY, 
HENRY  RHODES. 

Orange  County. 

THOS.  BURKE, 
NATHANIEL  ROCHESTER, 
ALEXANDER  MEBANE, 
JOHN  BUTLER, 
JOHN  McCABE. 

Pasquotank  County. 

HENRY  ABBOT, 
DEVOTION  DAVIS, 
ISAAC  GREGORY. 
DEMSEY  BURGESS, 
LEMUEL   SAWYER.t 

Perciuimons  County. 

BENJAMIN  HARVEY, 
MILES  HARVEY, 
THOMAS  HARVEY, 
WM.  SKINNER. 

Pitt  County. 

BENJAMIN  MAY, 
WM.  ROBSON, 
JAMES  GORHAM, 
GEORGE  EVANS,* 
EDWARD  SALTER. 

Rowan  County. 
MATTHEW  LOCK, 
GRIFFITH   RUTHERFORD, 
WM.  SHARPE, 
JAMES  SMITH, 
JOHN  BREVARD. 

Surry  County. 
ROBERT  LANIER, 
WM.  HALL, 
CHARLES  GORDON, 
JOSEPH  WILLIAMS. 

Tryon  County. 
JOSEPH  HARDEN, 
ROBERT  ABERNATHY, 
WM.  GRAHAM, 
WM.  ALSTON, 
JOHN  BARBER.t 

Tyrrell  County. 

PETER  WYNN.t 
JERE.  FRAZIER, 
ISHAM  WEBB, 
BENJ.  BLOUNT. 

Wake  County. 
TIGNAL  JONES, 
JAMES  JONES, 
MICHAEL  ROGERS, 
JOHN  RICE, 
BRITAIN  FULLER,  t 

Washington  f  CHAS.  ROBESON, 
District,    J  JOHN  CARTER, 
Watauga,    1  JOHN  HAILE, 
seltlement,    [JOHN  SEVIER. 

Towns  of 
Bath, 
Brunswick 
Campbelton, 
Edenton, 
Halifax, 
Newbehn, 
Salisbury, 


WM.  BROWN, 
PARKER  aUINCE, 
THOMAS  HADLEY, 
JOSEPH  HEWES, 
WILLIE  JONES, 
ABNER  NASH, 
DAVID  NESBIT. 


THE 


DECLiARATION  OF  RIGHTS. 


Jl  Declaration    of  Rights    made  by   the   Representatives   of  the 
Freemen  of  the  State  of  Jforth  Carolina. 

Sect.  1.  That  all  political  power  is  vested  in  and  derived 
from  the  people  only. 

Sect.  2.  That  the  people  of  this  State  ought  to  have  the  sole 
and  exclusive  right  of  regulating  the  internal  government  and  police 
thereof. 

^ECT.  3.   That  no  man  or  set  of  men  are  entitled  to  exclusive 
-oil^k)arate  emoluments  or  privileges  from  the  community,  but  in 
con^Reration  of  pubhc  services. 

Sect.  4.  That  the  legislative,  executive,  and  supreme  ju- 
dicial powers  of  government,  ought  to  be  forever  separate  and 
distinct  from  each  other. 

Sect.  5.  That  all  power  of  suspending  laws,  or  the  execution 
of  laws,  by  any  authority,  without  consent  of  the  representatives 
of  the  people,  is  injurious  to  their  rights,  and  ought  not  to  be 
exercised. 

Sect.  6.  That  elections  of  members  to  serve  as  represen- 
tatives in  General  Assembly,  ought  to  be  free. 

Sect.  7.  That  in  all  criminal  prosecutions,  every  man  has  a 
right  to  be  informed  of  the  accusation  against  him,  and'  to  confront 
the  accusers  and  witnesses  with  other  testimony,  and  shall  not 
be  compelled  to   give  evidence  against  himself. 

Sect.  8.  That  no  freeman  shall  be  put  to  answer  any  criminal 
charge,  but  by  indictment,  presentment,  or  impeachment. 

Sect.  9.  That  no  freeman  shall  be  convicted  of  any  crime,  but 
by  the  unanimous  verdict  of  a  jury,  of  good  and  lawful  men,  in 
open  court,  as  heretofore  used. 

Sect.  10.  That  excessive  bail  should  not  be  required,  nor 
excessive  fines  imposed,  nor  cruel  nor  unusual  punishments  in- 
flicted. 


8  DECLARATION    OF    RIGHTS. 

Sect.  11.  That  general  warrants,  whereby  any  officer  or 
messenger  may  be  commanded  to  search  suspected  places,  with- 
out evidence  of  the  fact  committed,  or  to  seize  any  person  or 
persons  not  named,  whose  offence  is  not  particularly  described 
and  supported  by  evidence,  are  dangerous  to  liberty,  and  ought 
not  to  be  granted. 

Sect.  12.  That  no  freeman  ought  to  be  taken,  imprisoned  or 
disseized,  of  his  freehold,  liberties,  or  privileges,  or  outlawed  or 
exiled,  or  in  any  manner  destroyed  or  deprived  of  his  life,  liberty 
or  property,  but  by  the  law  of  the  land. 

Sect.  13.  That  every  freeman  restrained  of  his  liberty,  is 
entitled  to  a  remedy  to  inquire  into  the  lawfulness  thereof,  and  to 
remove  the  same  if  unlawful,  and  that  such  remedy  ought  not  to 
be  denied  or  delayed. 

Sect.  14.  That  in  all  controversies  at  law,  respecting  pro- 
perty, the  ancient  mode  of  trial  by  jury  is  one  of  the  best  secu- 
rities of  the  rights  of  the  people,  and  ought  to  remain  sacred  and 
inviolable. 

Sect.  15.  That  the  freedom  of  the  press  is  one  of  the  great 
bulwarks  of  liberty,  and,  therefore,  ought  never  to  be  restrained. 

Sect.  16.  That  the  people  of  this  State  ought  not  to  be 
taxed  or  made  subject  to  the  payment  of  any  impost  or  duty 
without  the  consent  of  themselves  or  their  representatives  in 
General  Assembly,  freely  given. 

Sect.  17.  That  the  people  have  a  right  to  bear  arms  for  the 
defence  of  the  State  ;  and,  as  standing  armies  in  time  of  peace, 
are  dangerous  to  liberty,  they  ought  not  to  be  kept  up  ;  and  that 
the  military  should  be  kept  under  strict  subordination  to,  and 
governed  by,  the  civil  power. 

Sect.  18.  That  the  people  have  a  right  to  assemble  together, 
to  consult  for  their  common  good,  to  instruct  their  representatives, 
and  to  apply  to  the  legislature,  for  redress  of  grievances. 

Sect.  19.  That  all  men  have  a  natural  and  unahenable  right  to 
worship  Almighty  God  according  to  the  dictates  of  their  own  con- 
sciences. 

Sect.    20.    That  for   redress  of  grievances,  and   for  amend- 
ing and  strengthening  the  laws,  elections  ought  to  be  often  held. 
Sect.  21.  That  a  frequent  recurrence  to  fundamental  principles 
is  absolutely  necessary  to  preserve  the  blessings  of  liberty. 

Sect.  22.  That  no  hereditary  emoluments,  privileges  or  honors, 
ought  to  be  granted  or  conferred  in  this  State. 


DECLARATION    OF    RIGHTS. 

Sect.  23.  That  perpetuities  and  monopolies  are  contrary  to  the 
genius  of  a  free  State,  and  ought  not  to  be  allowed. 

Sect.  24.  That  retrospective  laws,  punishing  facts  committed 
before  the  existence  of  such  laws,  and  by  them  only  declared 
criminal,  are  oppressive,  unjust  and  incompatible  with  liberty, 
wherefore,  no  ex  post  facto  law  ought  to  be  made. 

Sect.  25.  The  property  of  the  soil  in  a  free  government, 
being  one  of  the  essential  rights  of  the  collective  body  of  the  peo- 
ple, it  is  necessary,  in  order  to  avoid  future  disputes,  that  the 
limits  of  the  State  should  be  ascertained  with  precision  ;  and  as 
the  former  temporary  line  between  North  and  South  Carolina  was 
confirmed  and  extended  by  commissioners  appointed  by  the  legis- 
latures of  the  two  States,  agreeable  to  the  order  of  the  late  King 
George  the  Second,  in  council,  that  hne,  and  that  only,  should 
be  esteemed  the  southern  boundary  of  this  State,  as  follows  :  that 
is  to  say,  beginning  on  the  sea  side,  at  a  cedar  stake,  at  or  near  the 
mouth  of  Little  River,  being  the  southern  extremity  of  Bruns- 
wick county  and  running  from  thence,  a  north-west  course  through 
the  boundary  house,  which  stands  in  thirtythree  degrees  fiftysix 
minutes,  to  thirtyfive  degrees  north  latitude  ;  and  from  thence 
a  west  course,  so  far  as  is  mentioned  in  the  charter  of  King 
Charles  the  Second,  to  the  late  proprietors  of  Carolina.  There- 
fore, all  the  territories,  seas,  water  and  harbors,  with  their  ap- 
purtenances, lying  between  the  line  above  described,  and  the 
southern  line  of  the  State  of  Virginia,  wliich  begins  on  the  sea 
shore  in  thirtysix  degrees  thirty  minutes  north  latitude,  and  from 
thence  runs  west,  agreeable  to  said  charter  of  King  Charles,  are 
the  right  and  property  of  the  people  of  this  State,  to  be  held  by 
them  in  sovereignty,  any  partial  line  without  the  consent  of  the 
legislature  of  this  State,  at  any  time  thereafter  directed  or  laid  out, 
in  any  wise  notwithstanding.  Provided  always.  That  this  declara- 
tion of  right  shall  not  prejudge  any  nation  or  nations  of  Indians, 
from  enjoying  such  hunting  grounds,  as  may  have  been,  or 
hereafter  shall  be  secured  to  them  by  any  former  or  future  legis- 
lature of  this  State.  And  provided  also,  That  it  shall  not  be  con- 
strued so  as  to  prevent  the  establishment  of  one  or  more  govern- 
ments westward  of  this  State,  by  consent  of  the  legislature. 
And  provided  further,  That  nothing  herein  contained,  shall  affect 
the  titles  or  possessions  of  individuals,  holding  or  claiming,  under 
the  laws  heretofore  in  force,  or  grants  heretofore  made  by  the  late 

VOL.    I.  2 


9 


i 


10  DECLARATION   OF   RIGHTS. 

King  George  the  Third,  or  his  predecessors,  or  the  late  lords  pro- 
prietors or  any  of  them. 

December  the  seventeenth  day,  Anno  Dom.  one")  ctixt't  t        n 

thousand  seven  hundred   and  seve-uysix,  read  >  K,.    CASWJliLL,    PtCS. 
the  third  time  and  ratified  in  -    ^li  congress.     3 

James  Green,  Jvi..,  Secretary, 


s 


THE 


CONSTITUTION   OF  NORTH  CAROLINA. 


The  ConstitiUion  or  Form  of  Government,  agreed  to  and  resolved 
upon  by  the  Representatives  of  the  Freemen  of  the  State  of 
JYorth  Carolina,  elected  and  chosen  for  that  particular  purpose, 
in  Congress  assembled,  at  Halifax,  thfi  eighteenth  day  of  De- 
cember, in  the  year  of  our  Lord,  one  thousand  seven  hundred 
and  seventysix. 

Whereas    allegiance  and  protection    are    in  their  nature  re- 
ciprocal, and  the  one  should  of  right  be  refused  when  the  other  is 
withdrawn.     And  whereas  George  the  Third,  King  of  Great  Bri- 
tain, and  late  sovereign  of  the  British  American  colonies  hath  not 
only  withdrawn  from  them  his  protection,  but  by  an  act  of  the  British 
legislature  declared  the   inhabitants    of  these   States    out   of  the 
protection  of  the  British  crown,  and  all  their  property  found  upon 
the  high  seas  liable  to  be  seized  and  confiscated  to  the  uses  mention- 
ed in  the  said  act.     And  the  said  George  the  Third  has  also  sent 
fleets  and  armies  to  prosecute  a  cruel  war  against  them,  for  the 
purpose  of  reducing  the  inhabitants  of  the  said  colonies  to  a  state 
of  abject  slavery.     In  consequence  whereof  all  government  under 
the  said   king  within  the  said  colonies,  hath  ceased,  and  a  total 
dissolution    of  government  in    many  of  them   hath  taken  place. 
And    whereas    the    continental    congress    having    considered  the 
premises,  and  other  previous  violations  of  the  rights  of  the  good 
people  of  America,  have  therefore  declared  that  the  Thirteen  Uni- 
ted Colonies  are,  of  right,  wholly  absolved  from  all  allegiance  to 
the   British  crown,  or  any  other  foreign  jurisdiction  whatsoever, 
and  that  the  said  colonies  now   are    and  forever  shall  be,  free 
and  independent  States  :  Wherefore,  in  our  present  state,  in  order 
to  prevent  anarchy  and  confusion,  it  becomes  necessary  that  a  gov- 
ernment should  be  established  in  this  State  :  Therefore,  We,  the 


12  STATE    CONSTITUTION. 

representatives  of  the  freemen  of  North  Carohna,  chosen  and 
assembled  in  congress  for  the  express  purpose  of  framing  a  con- 
stitution, under  the  authority  of  the  people,  most  conducive  to 
their  happiness  and  prosperity,  do  declare  that  a  government 
for  this  State  shall  be  established  in  manner  and  form  following,  to 
wit : 

Sect.  1.  That  the  legislative  authority  shall  be  vested  in  two 
distinct  branches,  both  dependent  on  the  people,  to  wit  :  a  senate 
and  house  of  commons. 

Sect.  2.  That  the  senate  shall  be  composed  of  representa- 
tives annually  chosen  by  ballot,  one  from  each  county  in  this 
State.* 

Sect.  3.  That  the  house  of  commons  shall  be  composed  of 
representatives  annually  chosen  by  ballot,  two  for  each  county, 
and  one  for  each  of  the  towns  of  Edenton-,  Jfewbern,  Wilming- 
ton,   Salisbury,  Hillsborough  and  Halifax. 

Sect.  4.  That  the  senate  and  house  of  commons,  assembled 
for  the  purpose  of  legislation,  shall  be  denominated  the  General 
Assembly. 

Sect.  5.  That  each  member  of  the  senate  shall  have  usually 
resided  in  the  county  in  which  he  is  chosen,  for  one  year  imme- 
diately preceding  his  election  ;  and  for  the  same  time  shall  have 
possessed,  and  continue  to  possess,  in  the  county  which  he  repre- 
sents, not  less  than  three  hundred  acres  of  land  in  fee. 

Sect,  6.  That  each  member  of  the  house  of  commons  shall 
have  usually  resided  in  the  county  in  which  he  is  chosen,  for  one 
year  immediately  preceding  his  election,  and  for  six  months  shall 
have  possessed,  and  continue  to  possess,  in  the  county  which  he 
represents,  not  less  than  one  hundred  acres  of  land  in  fee,  or  for 
the  term  of  his  own  life. 

Sect.  7.  That  all  freemen  of  the  age  of  twentyone  years, 
who  have  been  inhabitants  of  any  one  county  within  the  State 
twelve  months  immediately  preceding  the  day  of  any  election, 
and  possessed  of  a  freehold  within  the  same  county,  of  fifty  acres 
of  land  for  six  months  next  before  and  at  the  day  of  election, 
shall  be  entitled  to  vote  for  a  member  of  the  senate. 

Sect.  8.  That  all  freemen  of  the  age  of  twentyone  years, 
who  have  been  inhabitants  of  any  county  within  this  State  twelve 
months  immediately  preceding  the  day  of  any  election,  and  shall 
have  paid  public  taxes,  shall  be  entitled  to  vote  for  members  of 
the  house  of  commons  for  the  county  in  which  he  resides. 

*  Those  sections  of  the  constitution  in  which  material  amendments  have  been  made  ai-e 
printed  in  italics. 


STATE    CONSTITUTION. 

Sect.  9.  That  all  persons  possessed  of  a  freehold  in  any  toivn 
in  this  State,  having  a  right  of  representation,  and  also  all  free- 
men who  have  been  inhabitants  of  any  such  town  tivelve  months  next 
before  and  at  the  day  of  election,  and  shall  have  paid  public  taxes, 
shall  be  entitled  to  vote  for  a  member  to  represent  such  toion  in 
the  house  of  commons.  Provided  always.  That  this  section  shall 
not  entitle  any  inhabitant  of  such  toxon  to  vote  for  members  of 
the  house  of  commons  for  the  county  in  which  he  may  reside, 
nor  any  freeholder  in  such  county,  who  resides  without  or  beyond 
the  limits  of  such  toicn,  to  vote  for  a  member  for  said  town. 

Sect.  10.  That  the  senate  and  house  of  commons  when 
met,  shall  each  have  power  to  choose  a  speaker  and  other  their 
officers,  be  judges  of  the  qualifications  and  elections  of  their 
members,  sit  upon  their  own  adjournments  from  day  to  day,  and 
prepare  bills  to  be  passed  into  laws.  The  two  houses  shall 
direct  writs  of  elections  for  supplying  intermediate  vacancies,  and 
shall  also  jointly,  by  ballot,  adjourn  themselves  to  any  future  day 
and  place. 

Sect.  11.  That  all  bills  shall  be  read  three  times  in  each  house 
before  they  pass  into  laws,  and  be  signed  by  the  speaker  of  both 
houses. 

Sect.  12.  That  every  person  who  shall  be  chosen  a  member 
of  the  senate  or  house  of  commons,  or  appointed  to  any  office 
or  place  of  trust,  before  taking  his  seat  or  entering  upon  the  ex- 
ecution of  his  office,  shall  take  an  oath  to  the  State  ;  and  all  officers 
shall  also  take  an  oath  of  office. 

Sect.  13.  That  the  General  Assembly  shall,  by  joint  ballot 
of  both  houses,  appoint  judges  of  the  supreme  courts  of  law 
and  equity,  judges  of  admiralty,  and  attorney  general,  who  shall  be 
commissioned  by  the  governor,  and  hold  their  offices  during  good 
behavior. 

Sect.  14.  That  the  senate  and  house  of  commons  shall  have 
power  to  appoint  the  generals  and  field  officers  of  the  militia, 
and  all  officers  of  the  regular  army  of  this  State. 

Sect.  15.  That  the  senate  and  house  of  commons  jointly, 
at  their  first  meeting  after  each  annual  election,  shall  by  ballot 
elect  a  governor  for  one  year,  who  shall  not  be  eligible  to  that  office 
longer  than  three  years  in  six  successive  years  :  That  no  person 
under  thirty  years  of  age,  and  who  has  not  been  a  resident  in  this 
State  above  five  years,  and  having  in  the  State  a  freehold  in  lands 
and  tenements  above  the  value  of  one  thousand  pounds,  shall  be 
eligible  as  governor. 

Sect.  16.  That   the    senate  and   house  of  commons  jointly, 


13 


14  STATE    CONSTITUTION. 

at  their  first  meeting  after  each  annual  election,  shall  by  ballot 
elect  seven  persons  to  be  a  council  of  state  for  one  year,  who 
shall  advise  the  governor  in  the  execution  of  his  office  ;  and  that 
four  members  shall  be  a  quorum  ;  their  advice  and  proceedings 
shall  be  entered  in  a  journal  to  be  kept  for  that  purpose  only, 
and  signed  by  the  members  present  ;  to  any  part  of  which  any 
member  present  may  enter  his  dissent ;  and  such  journal  shall  be 
laid  before  the  General  Assembly  when  called  for  by  them. 

Sect.  17.  That  there  shall  be  a  seal  of  this  State,  which 
shall  be  kept  by  the  governor,  and  used  by  him  as  occasion 
may  require,  and  shall  be  called  the  great  seal  of  the  State  of 
North  Carohna,  and  be  affixed  to  all  grants  and  commissions. 

Sect.  18.  That  the  governor  for  the  time  being,  shall  be 
captain-general  and  commander-in-chief  of  the  militia  ;  and  in 
the  recess  of  the  General  Assembly,  shall  have  power,  by  and 
with  the  advice  of  the  council  of  slate,  to  embody  the  militia  for 
the  public  safety. 

Sect.  19.  That  the  governor  for  the  time  being,  shall  have 
power  to  draw  for  and  apply  such  sums  of  money  as  shall  be  voted 
by  the  General  Assembly  for  the  contingencies  of  government, 
and  be  accountable  to  them  for  the  same  ;  he  also  may,  by  and 
with  the  advice  of  the  council  of  state,  lay  embargoes,  or  pro- 
hibit the  exportation  of  any  commodity,  for  any  term  not  exceed- 
ing thirty  days  at  any  one  time,  in  the  recess  of  the  General  As- 
sembly, and  shall  have  the  power  of  granting  pardons  and  reprieves, 
except  where  the  prosecution  shall  be  carried  on  by  the  General 
Assembly,  or  the  law  shall  otherwise  direct ;  in  which  case,  he 
may,  in  the  recess,  grant  a  reprieve  until  the  next  sitting  of  the 
General  Assembly  ;  and  may  exercise  all  the  other  executive 
powers  of  government,  limited  and  restrained  as  by  this  constitu- 
tion is  mentioned,  and  according  to  the  laws  of  the  State  ;  and  on 
his  death,  inability,  or  absence  from  the  State,  the  speaker  of 
the  senate  for  the  time  being,  and  in  case  of  his  death,  inability, 
or  absence  from  the  State,  the  speaker  of  the  house  of  commons 
shall  exercise  the  powers  of  the  governor,  after  such  death,  or 
during  such  absence  or  inability  of  the  governor  or  speaker  of 
the  senate,  or  until  a  new  nomination  is  made  by  the  General 
Jlssemhly. 

Sect.  20.  That  in  every  case  where  any  officer,  the  right  of 
whose  appointment  is,  by  this  constitution,  vested  in  the  General 
Assembly,  shall,  during  their  recess,  die,  or  his  office  by  other 
means  become  vacant,  the  governor  shall  have  power,  with  the 
advice  of  the  council  of  state,  to  fill  up  such  vacancy  by  granting 


STATE    CONSTITUTION. 

a  temporary  commission,  which  shall  expire  at  the  end  of  the  next 
session  of  the  General  Assembly. 

Sect.  21.  That  the  governor,  judges  of  the  supreme  courts 
of  law  and  equity,  judges  of  admiralty  and  attorney  general, 
shall  have  adequate  salaries  during  their  continuance  in  office. 

Sect.  22.  That  the  General  Assembly  shall,  by  joint  ballot  of 
both  houses,  annually  appoint  a  treasurer  or  treasurers  for  this 
State. 

Sect.  23.  That  the  governor  and  other  officers  offending 
against  the  State,  by  violating  any  part  of  this  constitution,  mal- 
administration or  corruption,  may  be  prosecuted  on  the  impeach- 
ment of  the  General  Assembly,  or  presentment  of  the  grand  jury  of 
any  court  of  supreme  jurisdiction  in  this  State. 

Sect.  24.  That  the  General  Assembly  shall,  by  joint  ballot  of 
both  houses,  triennially  appoint  a  secretary  for  this  State. 

Sect.  25.  That  no  persons  who  heretofore  have  been  or  here- 
after may  be,  receivers  of  the  pubhc  moneys,  shall  have  a  seat  in 
either  house  of  General  Assembly,  or  be  ehgible  to  any  office  in 
this  State,  until  such  person  shall  have  fully  accounted  for  and  paid 
into  the  treasury,  all  sums  for  which  they  may  be  accountable  and 
liable. 

Sect.  26.  That  no  treasurer  shall  have  a  seat  in  either  the  sen- 
ate, house  of  commons,  or  council  of  state,  during  his  continuance 
in  that  office,  or  before  he  shall  have  finally  settled  his  accounts 
with  the  pubhc,  for  all  moneys  which  may  be  in  his  hands,  at  the 
expiration  of  his  office,  belonging  to  the  State,  and  hath  paid  the 
same  into  the  hands  of  the  succeeding  treasurer. 

Sect.  27.  That  no  officer  in  the  regular  army  or  navy,  in  the 
service  and  pay  of  the  United  States,  of  this  or  any  other  State, 
or  any  contractor  or  agent  for  supplying  such  army  or  navy  with 
clothing  or  provisions,  shall  have  a  seat  in  either  the  senate,  house 
of  commons,  or  council  of  state,  or  be  ehgible  thereto  ;  and  any 
member  of  the  senate,  house  of  commons,  or  council  of  state, 
being  appointed  to  and  accepting  of  such  office,  shall  thereby 
vacate  his  seat. 

Sect.  28.  That  no  member  of  the  council  of  state  shall  have  a 
seat  either  in  the  senate  or  house  of  commons. 

Sect.  29.  That  no  judge  of  the  supreme  court  of  law  or  equity, 
or  judge  of  admiralty,  shall  have  a  seat  in  the  senate,  house  of 
commons,  or  council  of  state. 

Sect.  30.  That  no  secretary  of  this  State,  attorney  general  or 
clerk  of  any  court  of  record,  shall  have  a  seat  in  the  senate,  house 
of  commons,  or  council  of  state. 


15 


STATE    CONSTITUTION. 

Sect.  31.  That  no  clergyman,  or  preacher  of  the  gospel,  of 
any  denomination,  shall  be  capable  of  being  a  member  of  either  the 
senate,  house  of  commons,  or  council  of  state,  while  he  continues 
in  the  exercise  of  the  pastoral  function. 

Sect.  32.  That  no  person  who  shall  deny  the  being  of  God, 
or  the  truth  of  the  protestant  rehgion,  or  the  divine  authority  either 
of  the  Old  or  New  Testament,  or  who  shall  hold  religious  princi- 
ples, incompatible  with  the  freedom  and  safety  of  the  State,  shall 
be  capable  of  holding  any  office  or  place  of  trust  or  profit  in  the 
civil  department,  within  this  State. 

Sect.  33.  That  the  justices  of  the  peace,  within  the  re- 
spective counties  in  this  State,  shall  in  future  be  recommended 
to  the  governor  for  the  time  being  by  the  representatives  in 
General  Assembly,  and  the  governor  shall  commission  them  ac- 
cordingly :  And  the  justices,  when  so  commissioned,  shall  hold 
their  offices  during  good  behavior,  and  shall  not  be  removed  from 
office  by  the  General  Assembly  unless  for  misbehavior,  absence, 
or  inability. 

Sect.  34.  That  there  shall  be  no  estabhshment  of  any  one  relig- 
ious church  or  denomination  in  this  State  in  preference  to  any  other; 
neither  shall  any  person,  on  any  pretence  whatsoever,  be  compelled  to 
attend  any  place  of  worship,  contrary  to  his  own  faith  or  judgment ; 
nor  be  obhged  to  pay  for  the  purchase  of  any  glebe,  or  the  build- 
ing of  any  house  of  worship,  or  for  the  maintenance  of  any  min- 
ister or  ministry,  contrary  to  what  he  believes  right,  or  has  vol- 
untarily and  personally  engaged  to  perform ;  but  all  persons  shall 
be  at  liberty  to  exercise  their  own  mode  of  worship  :  Provided, 
that  nothing  herein  contained  shall  be  construed  to  exempt  preachers 
of  treasonable  or  seditious  discourses  from  legal  trial  and  punish- 
ment. 

Sect.  35.  That  no  person  in  the  State  shall  hold  more  than 
one  lucrative  office  at  any  one  time.  Provided,  That  no  appoint- 
ment in  the  militia  or  to  the  office  of  a  justice  of  the  peace,  shall 
be  considered  as  a  lucrative  office. 

Sect.  36.  That  all  commissions  and  grants  shall  run  in  the 
name  of  the  State  of  North  Carolina,  and  bear  test  and  be  signed 
by  the  governor.  All  writs  shall  run  in  the  same  manner,  and 
bear  test  and  be  signed  by  the  clerks  of  the  respective  courts ; 
indictments  shall  conclude,  against  the  peace  and  dignity  of  the 
State. 

Sect.  37.  That  the  delegates  for  this  State  to  the  continental 
congress,  while  necessary,  shall  be  chosen  annually  by  the  Gen- 
eral Assembly,  by  ballot,  but  may  be  superseded  in  the  mean  time, 


STATE    CONSTITUTION. 

in  the  same  manner  :  and  no  person  shall  be  elected  to  serve  in  that 
capacity  for  more  than  three  years  successively. 

Sect.  38.  That  there  shall  be  a  sheriff,  coroner  or  coro- 
ners, and  constables,  in  each  county  within  this  State. 

Sect.  39.  That  the  person  of  a  debtor,  where  there  is  not  a 
strong  presumption  of  fraud,  shall  not  be  continued  in  prison  after 
delivering  up,  bona  jide,  all  his  estate,  real  and  personal,  for  the 
use  of  his  creditors,  in  such  manner  as  shall  be  hereafter  regulated 
by  law.  All  prisoners  shall  be  bailable  by  sufficient  sureties,  un- 
less for  capital  offences,  when  the  proof  is  evident,  or  presump- 
tion great. 

Sect.  40.  That  every  foreigner,  who  comes  to  settle  in  this 
State,  having  first  taken  an  oath  of  allegiance  to  the  same,  may 
purchase,  or  by  other  just  means  acquire,  hold  and  transfer  land 
or  other  real  estate ;  and  after  one  year's  residence,  shall  be  deemed 
a  free  citizen. 

Sect.  41.  That  a  school  or  schools  shall  be  established  by  the 
legislature  for  the  convenient  instruction  of  youth,  with  such- 
salaries  to  the  masters,  paid  by  the  public,  as  may  enable  them  to 
instruct  at  low  prices ;  and  all  useful  learning  shall  be  duly  en- 
couraged and  promoted  in  one  or  more  universities. 

Sect.  42.  That  no  purchase  of  lands  shall  be  made  of  the  In- 
dian natives,  but  on  behalf  of  the  public,  by  authority  of  the  Gen- 
eral Assembly. 

Sect.  43.  That  the  future  legislature  of  this  State  shall  reg- 
ulate entails  in  such  a  manner  as  to  prevent  perpetuities. 

Sect.  44.  That  the  declaration  of  rights  is  hereby  declared  to 
be  part  of  the  constitution  of  this  State,  and  ought  never  to  be 
violated  on  any  pretence  whatever. 

Sect.  45.  That  any  member  of  either  house  of  the  General 
Assembly  shall  have  hberty  to  dissent  from,  and  protest  against 
any  act  or  resolve  which  he  may  think  injurious  to  the  pubhc  or 
any  individual,  and  have  the  reasons  of  his  dissent  entered  on  the 
journals. 

Sect.  46.  That  neither  house  of  the  General  Assembly  shall 
proceed  upon  public  business,  unless  a  majority  of  all  the  members 
of  such  house  are  actually  present ;  and  that  upon  a  motion  made 
and  seconded,  the  yeas  and  nays  upon  any  question  shall  be  taken 
and  entered  on  the  journals ;  and  that  the  journals  of  the  pro- 
ceedings of  both  houses  of  the  General  Assembly,  shall  be 
printed  and  made  public,  immediately  after  their  adjournment. 

This  constitution  is  not  intended  to  preclude  the  present  con- 
gress from  making  a  temporary  provision  for  the  well    ordering  of 

VOL.    I.  3 


17 


18 


STATE   CONSTITUTION. 

this  State,  until  the  General  Assembly  shall  estabhsh  government 
agreeable  to  the  mode  herein  before  prescribed. 

December  the  eighteenth,  one  thousand  seven  ^ 
hundred  and  seventysis,  read  the  third  time  >  R.    CASWELL,  President. 
and  ratified  in  open  congress.  ) 

James  Green,  Jun.,   Secretary. 


Amendments  proposed  by  a  Convention  of  Delegates  of  the  People 
of  JYorth  Carolina  on  the  eleventh  of  July,  1835,  and  ratified 
by  the  People  on  the  second  Monday  of  JYovember,  in  the  same 
year. 

Whereas  the  General  Assembly  of  North  Carohna,  by  an  act, 
passed  the  sixth  day  of  January,  one  thousand  eight  hundred  and 
thirtyfive,  entitled  "  An  act  concerning  a  convention  to  amend 
the  constitution  of  the  State,"  and  by  an  act,  supplemental  thereto, 
passed  on  the  eighth  day  of  January,  one  thousand  eight  hundred 
and  thirtyfive,  did  direct  that  polls  should  be  opened  in  every 
election  precinct  throughout  the  State,  for  the  purpose  of  ascer- 
taining whether  it  was  the  will  of  the  freemen  of  North  Carolina 
that  there  should  be  a  convention  of  delegates,  to  consider  of 
certain  amendments  proposed  to  be  made  in  the  constitution  of 
said  State;  and  did  further  direct,  that  if  a  majority  of  all  the  votes 
polled  by  the  freemen  of  North  Carolina  should  be  in  favor  of 
holding  such  convention,  the  governor  should,  by  proclamation, 
announce  the  fact,  and  thereupon  the  freemen  aforesaid  should  elect 
delegates  to  meet  in  convention  at  the  city  of  Raleigh,  on  the  first 
Thursday  in  June,  one  thousand  eight  hundred  and  thirtyfive,  to 
consider  of  the  said  amendments  :  And  whereas  a  majority  of  the 
freemen  of  North  Carolina  did,  by  their  votes  at  the  polls  so 
opened,  declare  their  will  that  a  convention  should  be  had  to  con- 
sider of  the  amendments  proposed,  and  the  governor  did,  by 
proclamation,  announce  the  fact  that  their  will  had  been  so  de- 
clared, and  an  election  for  delegates  to  meet  in  convention  as 
aforesaid  was  accordingly  had  :  Now,  therefore,  we,  the  delegates 
of  the  good  people  of  North  Carolina,  having  assembled  in  con-  - 
vention,  at  the  city  of  Raleigh,  on  the  first  Thursday  in  June, 
one  thousand  eight  hundred  and  thirtyfive,  and  having  contin- 
ued in  session  from  day  to  day,  until  the  eleventh  of  July,  one 
thousand  eight  hundred  and  thirtyfive,  for  the  more  deliberate  con- 
sideration of  said  amendments,  do  now  submit  to  the  determination 


STATE    CONSTITUTION. 

of  all  the  qualified  voters  of  the    State,  the  following  amendments 
in  the  constitution  thereof,  that  is  to  say  : 

ARTICLE  I. 

SECTION    I. 

1.  The  senate  of  this  State  shall  consist  of  fifty  represen- 
tatives, biennially  chosen  by  ballot,  and  to  be  elected  by  dis- 
tricts ;  which  districts  shall  be  laid  off  by  the  General  Assembly, 
at  its  first  session  after  the  year  one  thousand  eight  hundred  and 
fortyone ;  and  afterwai'ds,  at  its  first  session  after  the  year  one 
thousand  eight  hundred  and  fiftyone ;  and  then  every  twenty  years 
thereafter,  in  proportion  to  the  public  taxes  paid  into  the  treas- 
ury of  the  State  by  the  citizens  thereof;  and  the  average  of  the 
pubhc  taxes  paid  by  each  county  into  the  treasury  of  the  State, 
for  the  five  yeai'S  preceding  the  laying  off  of  the  districts,  shall  be 
considered  as  its  proportion  of  the  public  taxes,  and  constitute  the 
basis  of  apportionment :  Provided,  That  no  county  shall  be  di- 
vided in  the  formation  of  a  senatorial  district.  And  when  there 
are  one  or  more  counties,  having  an  excess  of  taxation  above  the 
ratio  to  form  a  senatorial  district,  adjoining  a  county  or  counties 
deficient  in  such  ratio,  the  excess  or  excesses  aforesaid  shall  be 
added  to  the  taxation  of  the  county  or  counties  deficient ;  and  if, 
with  such  addition,  the  county  or  counties  receiving  it  shall  have 
the  requisite  ratio,  such  county  and  counties  each  shall  constitute 
a  senatorial  district. 

2.  The  house  of  commons  shall  be  composed  of  one  hun- 
dred and  twenty  representatives,  biennially  chosen  by  ballot, 
to  be  elected  by  counties  according  to  their  federal  population, 
that  is,  according  to  their  respective  numbers,  which  shall  be  de- 
termined by  adding  to  the  whole  number  of  free  persons,  includ- 
ing those  bound  to  service  for  a  term  of  years,  and  excluding 
Indians  not  taxed,  thi-eefifths  of  all  other  persons ;  and  each 
county  shall  have  at  least  one  member  in  the  house  of  com- 
mons, although  it  may  not  contain  the  requisite  ratio  of  popula- 
tion. 

3.  This  apportionment  shall  be  made  by  the  General  Assem- 
bly, at  the  respective  times  and  periods  when  the  districts 
for  the  senate  are  herein  before  directed  to  be  laid  off;  and  the 
said  apportionment  shall  be  made  according  to  an  enumeration  to 
be  ordered  by  the  General  Assembly,  or  according  to  the  census 
which  may  be  taken  by  order  of  congress,  next  preceding  the  pe- 
riod of  making  such  apportionment. 


19 


20 


STATE    CONSTITUTION. 

4.  In  making  the  apportionment  in  the  house  of  commons, 
the  ratio  of  representation  shall  be  ascertained  by  dividing 
the  amount  of  federal  population  of  the  State,  after  deducting 
that  comprehended  within  those  counties  which  do  not  severally 
contain  the  one  hundred  and  twentieth  part  of  the  entire  federal 
population  aforesaid,  by  the  number  of  representatives  less  than 
the  number  assigned  to  the  said  counties.  To  each  county  con- 
taining the  said  ratio,  and  not  twice  the  said  ratio,  there  shall  be 
assigned  one  representative ;  to  each  county  containing  twice,  but 
not  three  times  the  said  ratio,  there  shall  be  assigned  two  re- 
presentatives, and  so  on  progressively,  and  then  the  remaining 
representatives  shall  be  assigned  severally  to  the  counties  having 
the  largest  fractions. 

SECTION    II. 

1.  Until  the  first  session  of  the  General  Assembly  which 
shall  be  had  after  the  year  eighteen  hundred  and  fortyone, 
the  senate  shall  be  composed  of  members  to  be  elected  from  the 
several  districts  herein  after  named,  that  is  to  say,  the  1st  district 
shall  consist  of  the  counties  of  Perquimons  and  Pasquotank ;  the 
2d  district,  of  Camden  and  Currituck ;  the  3d  district,  of  Gates 
and  Chowan  ;  the  4th  district,  Washington  and  Tyrrell ;  the  5th 
district,  Northampton ;  the  6th  district,  Hertford ;  the  7th  district, 
Bertie ;  the  8th  district,  Martin ;  the  9th  district,  Halifax ;  the 
10th  district,  Nash;  the  11th  district.  Wake ;  the  12th  district, 
Franklin;  the  13th  district,  Johnson;  the  14th  district,  Warren; 
the  15th  district,  Edgecomb ;  the  16th  district,  W^ayne ;  the 
17th  district,  Greene  and  Lenoir;  the  18th  district,  Pitt;  the  19th 
district,  Beaufort  and  Hyde;  the  20th  district,  Carteret  and  Jones; 
the  21st  district,  Craven ;  the  22d  district,  Chatham ;  the  23d 
district,  Granville ;  the  24th  district,  Person ;  the  25th  district, 
Cumberland ;  the  26th  district,  Sampson ;  the  27th  district,  New 
Hanover ;  the  28th  district,  Duplin ;  the  29th  district,  Onslow ; 
the  30th  district,  Brunswick,  Bladen  and  Columbus ;  the  31st 
district,  Robeson  and  Richmond ;  the  32d  district,  Anson ;  the 
33d  district,  Cabarrus  ;  the  34th  district,  Moore  and  Montgomery; 
the  35th  district,  Caswell ;  the  36th  district,  Rockingham ;  the 
37th  district,  Orange ;  the  38th  district,  Randolph ;  the  39th 
district,  Guilford;  the  40th  district,  Stokes;  the  41st  district, 
Rowan ;  the  42d  district,  Davidson ;  the  43d  district,  Surry ; 
the  44th  district,  Wilkes  and  Ashe ;  the  45th  district,  Burke 
and  Yancy  ;  the  46th  district,  Lincoln ;  the  47th  district,  Iredell ; 
the  48th  district,  Rutherford ;  the  49th  district,  Buncombe, 
Haywood  and  Macon ;  and  the  50th  district,  Mecklenburg ;  each 
district  to  be  entitled  to  one  senator. 


STATE    CONSTITUTION.  21 

2.  Until  the  first  session  of  the  General  Assembly  after 
the  year  eighteen  hundred  and  fortyone,  the  house  of  com- 
mons shall  be  composed  of  members  elected  from  the  coun- 
ties in  the  following  manner,  viz :  The  counties  of  Lincoln  and 
Orange  shall  elect  four  members  each.  The  counties  of  Burke, 
Chatham,  Granville,  Guilford,  Halifax,  Iredell,  Mecklenburg, 
Rowan,  Rutherford,  Surry,  Stokes,  and  Wake  shall  elect  three 
members  each.  The  counties  of  Anson,  Beaufort,  Bertie,  Bun- 
combe, Cumberland,  Craven,  Caswell,  Davidson,  Duplin,  Edge- 
comb,  Franklin,  Johnston,  Montgomery,  New  Hanover,  North- 
ampton, Person,  Pitt,  Randolph,  Robeson,  Richmond,  Rocking- 
ham, Sampson,  Warren,  Wayne  and  Wilkes  shall  elect  two  mem- 
bers each.  The  counties  of  Ashe,  Bladen,  Brunswick,  Camden, 
Columbus,  Chowan,  Currituck,  Carteret,  Cabarrus,  Gates, 
Greene,  Haywood,  Hertford,  Hyde,  Jones,  Lenoir,  Macon, 
Moore,  Martin,  Nash,  Onslow,  Pasquotank,  Perquimons,  Tyr- 
rell, Washington  and  Yancy  shall  elect  one  member  each. 

SECTION    III. 

1.  Each  member  of  the  senate  shall  have  usually  resided 
in  the  district  for  which  he  is  chosen  for  one  year  immediately 
preceding  his  election,  and  for  the  same  time  shall  have  possessed 
and  continue  to  possess  in  the  district  which  he  represents  not 
less  than  three  hundred  acres  of  land  in  fee. 

2.  All  free  men  of  the  age  of  twentyone  years,  (except  as 
is  hereinafter  declared)  who  have  been  inhabitants  of  any  one 
district  within  the  State  twelve  months  immediately  preceding  the 
day  of  any  election,  and  possessed  of  a  freehold  within  the 
same  district  of  fifty  acres  of  land  for  six  months  next  before  and 
at  the  day  of  election,  shall  be  entitled  to  vote  for  a  member  of 
the  senate. 

3.  No  free  negro,  free  mulatto,  or  free  person  of  mixed  blood, 
descended  from  negro  ancestors  to  the  fourth  generation  inclu- 
sive (though  one  ancestor  of  each  generation  may  have  been  a 
white  person,)  shall  vote  for  members  of  the  senate  or  house  of 
commons 

SECTION    IV. 

1.  In  the  election  of  all  officers  whose  appointment  is  confer- 
red on  the  General  Assembly  by  the  constitution,  the  vote  shall 
be  viva  voce. 

2.  The  General  Assembly  shall  have  power  to  pass  laws  regulat- 
ing the  mode  of  appointing  and  removing  militia  officers. 


22  STATE    CONSTITUTION. 

3.  The  General  Assembly  shall  have  power  to  pass  general 
laws  regulating  divorce  and  alimony,  but  shall  not  have  power 
to  grant  a  divorce  or  secure  ahmony  in  any  individual  case. 

4.  The  General  Assembly  shall  not  have  power  to  pass  any 
private  law,  to  alter  the  name  of  any  person,  or  to  legitimate  any 
persons  not  born  in  lawful  wedlock,  or  to  restore  to  the  rights 
of  citizenship  any  person  convicted  of  an  infamous  crime ;  but 
shall  have  power  to  pass  general  laws  regulating  the  same. 

5.  The  General  Assembly  shall  not  pass  any  private  law, 
unless  it  shall  be  made  to  appear  that  thirty  days  notice  of  applica- 
tion to  pass  such  law  shall  have  been  given,  under  such  directions 
and  in  such  manner  as  shall  be  provided  by  law. 

6.  If  vacancies  shall  occur  by  death,  resignation  or  other- 
wise, before  the  meeting  of  the  General  Assembly,  writs  may 
be  issued  by  the  governor,  under  such  regulations  as  may  be  pre- 
scribed by  law. 

7.  The  General  Assembly  shall  meet  biennially,  and  at  each 
biennial  session  shall  elect,  by  joint  vote  of  the  two  houses, 
a  secretary  of  state,  treasurer  and  council  of  state,  who  shall 
continue  in  office  for  the  term  of  two  years. 


ARTICLE  II. 

1.  The  governor  shall  be  chosen  by  the  quahfied  voters 
for  the  members  of  the  house  of  commons,  at  such  time  and 
places  as  members  of  the  General  Assembly  are  elected. 

2.  He  shall  hold  his  office  for  the  term  of  two  years  from 
the  time  of  his  installation,  and  until  another  shall  be  elected 
and  qualified ;  but  he  shall  not  be  eligible  more  than  four  years  in 
any  term  of  six  years. 

3.  The  returns  of  every  election  for  governor  shall  be  sealed 
lip  and  transmitted  to  the  seat  of  government,  by  the  returning 
officers,  directed  to  the  speaker  of  the  senate,  who  shall  open 
and  pubhsh  them  in  the  presence  of  a  majority  of  the  members 
of  both  houses  of  the  General  Assembly.  The  person  having 
the  highest  number  of  votes,  shall  be  governor ;  but  if  two  or 
more  shall  be  equal  and  highest  in  votes,  one  of  them  shall  be 
chosen  governor  by  joint  vote  of  both  houses  of  the  General 
Assembly. 

4.  Contested  elections  for  governor  shall  be  determined  by 
both  houses  of  the  General  Assembly,  in  such  manner  as  shall 
be  prescribed  by  law. 


STATE    CONSTITUTION.  23 

5.  The  governor  elect  shall  enter  on  the  duties  of  the  office 
on  the  first  day  of  January  next  after  his  election,  having  pre- 
viously taken  the  oaths  of  office  in  presence  of  the  members 
of  both  branches  of  the  General  Assembly,  or  before  the  chief 
justice  of  the  supreme  court,  who,  in  case  the  governor  elect 
should  be  prevented  from  attendance  before  the  General  Assem- 
bly, by  sickness  or  other  unavoidable  cause,  is  authorised  to  ad- 
minister the  same. 

ARTICLE  III. 

SECTION    I- 

1.  The  governor,  judges  of  the  supreme  court,  and  judges 
of  the  superior  courts,  and  all  other  officers  of  this  State,  (except 
justices  of  the  peace  and  militia  officers,)  may  be  impeached 
for  wilfully  violating  any  article  of  the  constitution,  mal-adminis- 
tration  or  corruption. 

2.  Judgment,  in  cases  of  impeachment,  shall  not  extend  further 
than  to  removal  from  office  and  disqualification  to  hold  and  enjoy 
any  office  of  honor,  trust  or  profit  under  this  State  ;  but  the  party 
convicted,  may,  nevertheless,  be  liable  to  indictment,  trial,  judg- 
ment and  punishment  according  to  law. 

3.  The  house  of  commons  shall  have  the  sole  power  of  im- 
peachment. The  senate  shall  have  the  sole  power  to  try  all 
impeachments ;  no  person  shall  be  convicted  upon  any  im- 
peachment, unless  twothirds  of  the  senators  present  shall  concur 
in  such  conviction  ;  and  before  the  trial  of  any  impeachment,  the 
members  of  the  senate  shall  take  an  oath  or  affirmation  truly  and 
impartially  to  try  and  determine  the  charge  in  question  according 
to  evidence. 

SECTION    II. 

1.  Any  judge  of  the  supreme  court,  or  of  the  superior 
courts,  may  be  removed  from  office  for  mental  or  physical  in- 
ability, upon  a  concurrent  resolution  of  twothirds  of  both  branches 
of  the  General  Assembly.  The  judge,  against  whom  the  legis- 
lature may  be  about  to  proceed,  shall  receive  notice  thereof,  ac- 
companied by  a  copy  of  the  causes  alleged  for  his  removal,  at 
least  twenty  days  before  the  day  on  which  either  branch  of  the 
General  Assembly  shall  act  thereon. 

2.  The  salaries  of  the  judges  of  the  supreme  court,  or  of  the 
superior  courts,  shall  not  be  diminished  during  their  continuance 
in  office. 


24  STATE    CONSTITUTION. 


SECTION    III. 

Upon  the  conviction  of  any  justice  of  the  peace,  of    any  In 
famous  crime,  or  of  corruption  and  mal-practice  in  office,  the  com- 
mission of  such  justice  shall  be  thereby  vacated,  and  he  shall  be 
forever  disqualified  from  holding  such  appointment. 

SECTION    IV. 

The  General  Assembly  at  its  first  session  after  the  year  one 
thousand  eight  hundred  and  thirtynine,  and  from  time  to  time 
thereafter,  shall  appoint  an  attorney  general,  who  shall  be  com- 
missioned by  the  governor,  and  shall  hold  his  office  for  the  term 
of  four  years  ;  but  if  the  General  Assembly  should  hereafter  extend 
the  term  during  wliich  solicitors  of  the  State  shall  hold  their  of- 
fices, then  they  shall  have  power  to  extend  the  term  of  office  of 
the  attorney  general  to  the  same  period. 


ARTICLE  IV. 

SECTION    I. 

1 .  No  convention  of  the  people  shall  be  called  by  the  General 
Assembly,  unless  by  the  concurrence  of  twothirds  of  all  the 
members  of  each  house  of  the  General  Assembly. 

2.  No  part  of  the  constitution  of  this  Stats  shall  bs  altered, 
unless  a  bill  to  alter  the  same  shall  have  been  read  three  times 
in  each  house  of  the  General  Assembly,  and  agreed  to  by 
threefifths  of  the  whole  number  of  members  of  each  house 
respectively  ;  nor  shall  any  alteration  take  place  until  the  bill  so 
agreed  to  shall  have  been  pubhshed  six  months  previous  to  a  new 
election  of  members  to  the  General  Assembly.  If,  after  such  pub- 
lication, the  alteration  proposed  by  the  preceding  General  Assem- 
bly, shall  be  agreed  to  in  the  first  session  thereafter  by  two- 
thirds  of  the  whole  representation  in  each  house  of  the  General 
Assembly,  after  the  same  shall  have  been  read  three  times  on 
three  several  days  in  each  house,  then  the  said  General  Assem- 
b  y  shall  prescribe  a  mods  by  which  the  amendment  or  amend- 
ments may  be  submitted  to  the  qualified  voters  of  the  house  of 
commons  throughout  the  State  ;  and  if,  upon  comparing  the  votes 
given  in  the  whole  State,  it  shall  appear  that  a  majority  of  the 
voters  have  approved  thereof,  then,  aiid  not  otherwise,  the  same 
shall  become  a  part  of  the  constitution. 


STATE    CONSTITUTION. 


SECTION    II. 


25 


The  thirtysecond  section  of  the  constitution  shall  be  amended 
to  read  as  follows  :  No  person  who  shall  deny  the  being  of  God, 
or  the  truth  of  the  Cliristian  religion,  or  the  divine  authority  of 
the  Old  or  New  Testament,  or  who  shall  hold  religious  principles 
incompatible  with  the  freedom  or  safety  of  the  State,  shall  be  ca- 
pable of  holding  any  office  or  place  of  trust  or  profit  in  the  civil 
department  within  this  State. 

SECTION    III. 

1.  Capitation  tax  shall  be  equal  throughout  the  State  upon  all 
individuals  subject  to  the  same. 

2.  All  free  males  over  the  age  of  twentyone  years,  and  under 
the  age  of  fortyfive  years,  and  all  slaves  over  the  age  of  twelve 
years,  and  under  the  age  of  fifty  years,  shall  be  subject  to  cap- 
itation tax,  and  no  other  person  shall  be  subject  to  such  tax  ; 
provided  that  nothing  herein  contained  shall  prevent  exemptions 
of  taxable  polls  as  heretofore  prescribed  by  law  in  cases  of 
bodily  infirmity. 

SECTION    IV. 

No  person  who  shall  hold  any  office  or  place  of  trust  or  profit 
under  the  United  States,  or  any  department  thereof,  or  under  this 
State,  or  any  other  state  or  government,  shall  hold  or  exercise 
any  other  office  or  place  of  trust  or  profit  under  the  authority  of 
this  State,  or  be  eligible  to  a  seat  in  either  house  of  the  General 
Assembly  :  Provided,  that  nothing  herein  contained  shall  extend 
to  officers  in  the  mihtia  or  justices  of  the  peace. 

Ratified  in   convention,  this  eleventh  day ) 

of  July,  in  the   year  of  our   Lord,   one^NATH'L.    MACON,    Pves. 
thousand  eight  hundred  and  thirty  five.     ) 

Edmund  B.   Freeman,  Secretary  of  the  Convention. 
Joseph  D.   Ward,  Assistant  Secretary. 


VOL.    I. 


AN    ORDINANCE 


TO  CARRY  INTO  EFFECT  THE  AMENDED  CONSTITUTION. 


Be  it  ordained  and  declared,  by  the  delegates  to  this  Con- 
vention, in  convention  assembled,  and  it  is  hereby  ordained  by 
the  authority  of  the  same,  That  the  amendments  to  the  constitu- 
tion of  this  State,  adopted  by  this  convention,  be  submitted  by 
the  governor  to  the  people,  on  the  second  Monday  in  Novem- 
ber next,  thirty  days  notice  having  been  given,  and  that  the  polls 
be  opened  by  the  respective  sheriffs,  and  kept  open  for  three  suc- 
cessive days,  at  the  several  election  precincts  in  each  and  every 
county  in  the  State,  under  the  same  rules  and  regulations,  as  now 
exist,  for  the  election  of  members  to  the  General  Assembly. 
That  the  said  sheriffs  be  required  to  compare  and  certify  the  results 
of  the  elections,  on  or  before  the  Monday  following,  and  transmit 
the  same  in  twenty  days  thereafter,  to  the  governor  of  the  State. 
That  all  persons  qualified  to  vote  for  members  of  the  house  of 
commons,  may  vote  for  or  against  a  ratification  of  the  amend- 
ments. Those  who  wish  a  ratification  of  the  amendments,  voting 
with  a  printed  or  written  ticket,  '^  Ratification^^ — those  of  a  con- 
trary opinion,  '■'•Rejection.'''' 

Further,  That  it  shall  be  the  duty  of  the  sheriffs  to  make  du- 
plicate statements  of  the  polls  in  their  respective  counties,  sworn 
to  before  the  clerk  of  the  county  court :  one  copy  of  which 
shall  be  deposited  in  said  clerk's  office,  and  the  other  copy 
transmitted  to  the  governor  of  the  State,  at  Raleigh. 

Be  it  further  ordained  by  the  authority  of  the  same.  That  when 
the  returns  aforesaid  shall  have  been  received,  the  same  shall  be 
opened  by  the  governor  in  the  presence  of  the  secretary  of 
state  and  treasurer,  and  in  case  a  majority  of  the  votes  polled 
shall  be  in  favor  of  a  ratification  of  the  amendments,  the  same 
shall  be  forthwith  made  known  by  a  proclamation  of  the  governor 


STATE    CONSTITUTION.  27 

to  the  people  of  the  State.  And  thereupon,  the  governor  shall 
cause  to  be  endorsed  on  the  amendments,  as  enrolled  by  order  of 
tlie  convention,  or  shall  annex  thereunto,  a  certificate  under  his 
signature  declaring  that  the  said  amendments  have  been  ratified  by 
the  people  of  North  Carolina,  and  the  secretary  of  state  shall 
countersign  the  said  certificate,  and  annex  thereto  the  great  seal 
of  the  State,  and  the  said  amendments  so  enrolled  with  the  certifi- 
cate aforesaid  shall  be  forever  kept  among  the  archives  of  the 
State  in  the  office  of  the  secretary  aforesaid. 

Be  it  further  ordained  by  the  authority  aforesaid,  That  the 
amendments  thus  ratified  shall  take  effect,  and  be  in  force,  from 
and  after  the  first  day  of  January,  A.  D.  one  thousand  eight  hun- 
dred and  thirtysix  :  Provided,  however,  that  the  governor,  the 
council  of  state,  the  secretary  of  state  and  the  public  treasurer, 
who  may  then  be  in  office,  shall  severally  continue  to  exercise 
their  respective  functions  until  the  governor,  council  of  state, 
secretary  of  state  and  public  treasurer  appointed  under  the 
amended  constitution  shall  enter  upon  the  duties  of  their  office. 

Ratified  in  Convention,  this  eleventh  day }    ,  » 

of  July,  anno   Dom.  one  thousand  eight  V  NAT H'L.    MACON,    Pres. 
hundred  and  thirty  five.  ) 

Edmund  B.  Freeman,   Secretary  of  the  Convention. 
Joseph  D.  Ward,  Assistant  Secretary. 


CONSTITUTION 


OF 


THE    UNITED    STATES. 


IN  GENERAL  ASSEMBLY,  Nov.  20, 1788. 

Resolved,  That  it  is  the  opinion  of  this  house,  a  new  conven- 
tion be  recommended,  for  the  purpose  of  reconsidering  the  new 
constitution  held  out  by  the  federal  convention  as  a  government 
for  the  United  States. 

Resolved,  That  it  be  recommended  to  such  of  the  inhabitants 
of  this  State  as  are  entitled  to  vote  for  members  of  the  house  of 
commons,  at  the  annual  election  to  be  held  in  each  county  on  the 
third  Friday  and  Saturday  in  August  next,  to  vote  for  five  per- 
sons in  each  county,  and  one  person  in  each  borough-town  having 
a  right  of  representation  agreeable  to  the  constitution  of  this  State, 
to  sit  as  a  State  convention,  for  the  purpose  of  deliberating  and 
determining  on  the  proposed  federal  constitution  for  the  future 
government  of  the  United  States,  and  on  such  amendments,  if 
any,  as  shall  or  may  be  made  to  the  said  constitution  by  a  con- 
vention of  the  States  previous  to  the  meeting  of  the  said  conven- 
tion of  this  State  ;  which  election  shall  be  conducted  agreeable  to 
the  mode,  and  conformable  to  the  rules  and  regulations  prescribed 
by  law  for  conducting  the  elections  of  members  of  the  General 
Assembly  :  and  every  citizen  within  this  State,  being  a  freeholder, 
shall  be  eligible  to  a  seat  in  the  said  Convention,  sheriffs  and  re- 
turning officers  excepted. 

Resolved,  That  the  sheriffs  of  the  counties  in  this  State,  do 
advertise  and  notify  the  people  of  their  counties  and  borough- 
towns,  of  the  time,  place  and  purpose  of  holding  said  election,  at 
the  same  time,  and  in  the  same  manner,  as  the  law  requires  them 
to  advertise  elections  for  members  of  the  General  Assembly. 


CONSTITUTION    OF    THE    UNITED    STATES. 

Resolved,  That  the  persons  so  elected  to  serve  in  a  State 
convention,  do  assemble  and  meet  together  on  the  third  Monday 
in  November,  at  such  place  as  shall  be  appointed  for  the  meeting 
of  the  General  Assembly,  then  and  there  to  deliberate  and  deter- 
mine on  the  said  constitution,  and  on  the  amendments,  if  any  ; 
and  if  approved  of  by  them,  to  confirm  and  ratify  the  same  on  be- 
half of  this  State,  and  malce  report  thereof  to  congress  and  to  the 
General  Assembly. 

Resolved,  That  it  be  recommended  by  this  Assembly,  to  the 
convention  which  is  to  meet  on  the  third  Monday  in  November  to 
reconsider  the  new  constitution,  that  they  also  consider  the  pro- 
priety of  allowing  the  town  of  Fayetteville  a  member  to  represent 
the  said  town,  on  the  same  terms  with  the  other  district  towns  in 

this  State. 

ALEX.  MARTIN,  S.  S. 

JOHN  SITGREAVES,  S.  C. 


29 


IN  CONVENTION,  Saturday,  Nov.  21,  1789. 

Whereas  the  general  convention  which  met  in  Philadel- 
phia, in  pursuance  of  a  recommendation  of  congress,  did  recom- 
mend to  the  citizens  of  the  United  States,  a  constitution  or  form 
of  government,  in  the  following  words,  viz. 

We,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  Union,  establish  justice,  insure  domestic  tranquilhty,  pro- 
vide for  the  common  defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and  our  posterity,  do 
ordain  and  establish  this  constitution  for  the  United  States  of 
America. 

ARTICLE    I. 

section   I. 

All  legislative  powers  herein   granted  shall  be  vested  in  a  con-  j^^  j^^^^. 
gress  of  the  United   States,  which  shall  consist  of  a  senate  and  powers  vested 

,  -  .  in  congress. 

house  of  representatives. 

SECTION    II. 

The  house  of  representatives  shall  be  composed  of  members  House  of  repre- 
chosen  every  second  year  by  the  people  of  the  several  states,  and^gj^^grs^Ty^^ 
the  electors  in  each  state  shall  have  the  qualifications  requisite  for  ^udificatfons'of 
electors  of  the  most  numerous  branch  of  the  state  legislature.         electors. 


30  CONSTITUTION    OF    THE    UNITED    STATES. 

A  representa-       2.  No  person  shall  be  a  representative  who  shall  not  have  at- 

tive  to  be  25  :  7      .        ,  ,  „  „  ,    , 

years  a  citizen  tamed  to  the  age  of  twentynve  years,   and  been  seven  years   a 
and  ^an  inhabi- citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be 
when  diteS^^  ^  inhabitant  of  that  state  in  which  he  shall  be  chosen. 
Representa-  3.  Representatives  and  direct  taxes  shall  be  apportioned  among 

lives  and  taxes   .  ,  ,  .    ,  i        •      i     i     i        •  i  ■        i  ■ 

to  be  apportion- the  scvcral  States  wmich  may  be  mcluded  withm  this  union,  ac- 

numbers/"^  *°  cording  to  their  respective  numbers,  which  shall  be  determined  by 

adding  to  the  whole  number  of  free  persons,  including  those  bound 

to  service  for  a  term  of  years,  and  excluding  Indians   not  taxed, 

Actual  enumer- threefifths   of  all  Other  persons.     The  actual  enumeration  shall  be 

ation  every  ten         i-i-i  ri/>  ■  r    ^  c 

years.  made  withm  three  years  alter  the  farst  meeting  oi  the  congress  oi 

the  United  States,  and  within  every  subsequent  term  of  ten  years, 

Limitation  of  in  sucli  manner  as  they  shall  by  law  direct.     The  number  of  re- 

the  ratio  of  re-  -in  i  r  ^  •  ^  i     i 

presentation,     prcscntatives  shall  iiot  excecd  one  tor  every  thirty  thousand,  but 

each  state  shall  have   at  least  one   representative  ;  and  until  such 

First  apportion- enumeration  shall  be  made,  the  state  of  New  Hampshire   shall  be 

sentatives.        entitled  to  choose  three,   Massachusetts  eight,    Rhode  Island  and 

Providence   Plantations  one,   Connecticut  five,  New    York  six, 

New  Jersey  four,  Pennsylvania  eight,  Delaware  one,  Maryland  six, 

Virginia    ten.    North    Carolina  five,    South    Carolina   five,    and 

Georgia  three. 

Writs  of  elec-      4.   When  vacaucics  happen  in  the  representation  from  any  state, 

vacancies.    ^^^  ^^  executive  authority  thereof  shall  issue  writs  of  election  to  fill 

such  vacancies. 
House  of  rep-      5.   The  house  of  representatives  shall  choose  their  speaker  and 
choose  speaker  Other  oflicers  ;  and  shall  have  the  sole  power  of  impeachment. 

&c.  and  have 
power  of  im- 
peachment. SECTION  III. 

Senators,  how  1-  The  Senate  of  the  United  States  shall  be  composed  of  two 
haveavote'^.  °  senators  from  each  state,  chosen  by  the  legislature  thereof,  for 
[See  art.  5.]  gj-jj  years  ;  and  each  senator  shall  have  one  vote. 
Senate  divided  2.  Immediately  after  they  shall  be  assembled  in  consequence  of 
selVSe "iho- the  first  election,  they  shall  be  divided  as  equally  as  maybe  into 
f£/''^'^  ^^^°  three  classes.     The  seats  of  the  senators  of  the  first  class  shall  be 

years. 

vacated  at  the  expiration  of  the  second  year,  of  the  second  class  at 
the  expiration  of  the  fourth  year,  and  of  the  third  class  at  the  ex- 
piration of  the  sixth  year,  so  that  one  third  may  be  chosen  every 

Executives  of  second  year  ;  and  if  vacancies  happen  by  resignation,  or  other- 
states  to  fill  va-      .  ,      .  ,  r-    1      1      •  1  /.  1 

cancies  in  the  wise,  during  the  recess  ot  the  legislature  of  any  state,  the  execu- 
latures,  &c.      ^^^^  thereof    may  make  temporary  appointments   until  the  next 
meeting  of  the  legislature,  which  shall  then  fill  such  vacancies. 


CONSTITUTION    OF   THE    UNITED   STATES.  31 

3.  No  person  shall  be  a  senator  who  shall  not  have  attained  to  A  senator  aged 

T  /■     1  •  11  •  •  •  r    1       TT    •       1  "^0 ;  nine   years 

the  age  oi  thirty  years,  and  been  mne  years  a  citizen  oi  the  United  a  citizen  of  the 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that  and'  an  inhabl- 
state  for  which  he  shall  be  chosen.  when^chosen^'^^ 

4.  The  vice-president  of  the  United  States  shall  be  president  Vice  president 
of  the  senate,  but  shall  have  no  vote,  unless   they  be  equally  di-of  the"^seMte; 

•1    J  to   vote   on   an 

VlCiea.  eq.  div.only. 

5.  The  senate  shall  choose  their  other  officers,  and  also  a  presi-The  senate  to 

Ciioos6  their 

dent  pro  tempore,  in  the  absence  of  the  vice-president,  or  when  president  pro 
he  shall  exercise  the  office  of  president  of  the  United  States.  empore, 

6.  The  senate  shall  have  the  sole  power  to  try  all  impeachments.  The  senate  have 
When  sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation,  to  try  impeach- 
When  the  president  of  the  United  States  is  tried,  the  chief  justice '^^'^^' 

shall  preside  :  and  no  person  shall  be  convicted  without  the  con- 
currence of  twothirds  of  the  members  present. 

7.  Judgment  in  cases  of  impeachment  shall  not  extend  further  Extent  of  judg- 
than  to  removal  from  office,  and  disqualification  to  hold  and  enjoy  impeachment; 
any  office  of  honor,  trust  or  profit  under  the  United  States  :  but  f^r\hCTlFabl7by 
the  party  convicted  shall  nevertheless  be  liable  and  subject  to  in-  indictment  at 
dictment,  trial,  judgment  and  punishment,  according  to  law. 

SECTION  IV. 

1.  The  times,  places  and  manner  of  holding  elections  for  senators  Times,  &c.  of 

.  .  .  II-      holding  elec- 

and  representatives,  shall  be  prescribed  in  each  state  by  the  legis- tions  for  sena- 

,,/.,,  -Ill  tors  and   repre- 

lature  thereoi  ;  but  the  congress  may  at  any  time  by  law  make  or  sentatives  regu- 
alter  such  regulations,  except  as  to  the  places  of  choosing  sena-  ^^^^^  ^J^^  ° 

tors.  congress. 

2.  The  congress  shall  assemble  at  least  once  in  every  year,  and  Congress  to  as- 

1     11    1  1         <^  Tvr        1         ■        -r\  1  semble  annual- 

such  meeting  shall  be  on  the  first  Monday  in  December  unless  ly  the  istMon- 
they  shall  by  law  appoint  a  different  day.  unless,&c. 

SECTION  v. 

1.  Each  house  shall  be  the  iudge  of  the  elections,  returns  and  ^'^'^^  ^°"®^ 

,  .      .  judge   01  the 

qualifications  of  its   own  members,    and  a  majority  of  each  shall  election  and 

.  11  qualifications  of 

constitute  a   quorum  to  do   business  ;  but  a   smaller  number   may  its  own  mem- 
adjourn  from  day  to  day,  and  may  be  authorized  to  compel  the  at- 
tendance of  absent  members,   in  such  manner,    and  under  such 
penalties  as  each  house  may  provide. 

2.  Each  house  may  determine  the  rules  of  its  proceedings.  Each  house  to 
punish  its  members  for  disorderly  behavior,  and,  with  the  concur-  [°j™  'and  ^n- 
rence  of  twothirds  expel  a  member.  }^^  its  mem- 

.  .  .  bers. 

3.  Each  house  shall  keep  a  journal  of  its  proceedings,  and  from  joumaisof  each 
time  to  time   publish  the  same,  excepting  such  parts  as  may  in  and^nays  ITow 

taken. 


32  CONSTITUTION   OF    THE    UNITED    STATES. 

their  judgment  require  secrecy  ;  and  the  yeas   and  nays  of  the 
members  of  either  house   on  any  question  shall,  at  the  desire  of 
onefifth  of  those  present,  be  entered  on  the  journal. 
Adjoummentof     4.   Neither  house,  during  the  session  of  congress,  shall,  without 

both  houses.  r    t  -i  t  r  i  i  i 

the  consent  oi  the  other,  adjourn  tor  more  than  three  days,  nor 
to  any  other  place  than  that  in  which  the  two  houses  shall  be  sitting. 

SECTION    VI. 

Senators  and         1.   The  senators  and  representatives  shall  receive  a  compensa- 
to^brpaid,^&,c.  tion  for  their  services,  to  be   ascertained  by  law,  and  paid  out  of 
SmstTnot^'T  the  treasury  of  the  United  States.     They  shall  in  all  cases,  except 
Y  Ttf^J°"&     treason,  felony  and  breach  of  the  peace,  be  privileged  from  arrest 
during  their  attendance   at  the  session  of  their  respective  houses, 
and  in  going  to  and  returning  from  the  same  ;  and  for  any  speech 
or  debate  in  either  house,  they  shall  not  be  questioned  in  any  other 
place. 
Concerning  the      2.   No  senator  or  representative  shall  during  the  time  for  which 
ces  by  "senators  he  was  elected,  be  appointed  to  any  civil  office  under  the  authority 
th-es'.^^'^^^^'^  ^  of  the  United  States,  which  shall  have  been  created,  or  the  emol- 
uments whereof  shall  have  been  increased  during  such  time  ;  and 
no  person  holding  any  office   under  the  United  States,  shall  be  a 
member  of  either  house  during  his  continuance  in  office. 

SECTION  VII. 

Revenue  bill  to  ^'  -^^^  bills  foT  raising  revenue  shall  originate  in  the  house  of 
house^of  repre^  representatives  ;  but  the  senate  may  propose  or  concur  with 
sentatives,  &c.  amendments  as  on  other  bills. 

Powers  of  the  2.  Every  bill  which  shall  have  passed  the  house  of  representa- 
con^ress^in'theti^^^  and  the  senate,  shall,  before  it  become  a  law,  be  presented  to 
enactingof  ^]^g  president  of  the  United  States  ;  if  he  approve  he  shall  sign  it, 
forms  of  pro-   })ut  if  not  he   shall  return  it,  with  his  objections   to  that  house  in 

ceeding  on  bills ...  .    .  , 

in  that  respect,  whicli  It  shall  have  origmated,  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If  after  such 
reconsideration  twothirds  of  that  house  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other 
house,  by  which  it  shall  likewise  be  reconsidered,  and  if  approved 
by  twothirds  of  that  house,  it  shall  become  a  law.  But  in  all 
such  cases  the  votes  of  both  houses  shall  be  determined  by  yeas 
and  nays,  and  the  names  of  the  persons  voting  for  and  against  the 
bill  shall  be  entered  on  the  journal  of  each  house  respectively.  If 
any  bill  shall  not  be  returned  by  the  president  within  ten  days 
(Sundays  excepted)  after  it  shall  have  been  presented  to  him,  the 


CONSTITUTION    OF    THE    UNITED    STATES.  33 

same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless 
the  congress  by  their  adjournment  prevent  its  return,  in  which 
case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote  to  which  the  concurrence  Joint  resolu- 
of  the  senate  and  house  of  representatives  may  be  necessary  (ex-  adjournment,  to 
cept  on  a  question  of  adjournment)  shall  be  presented  to  the  presi- samlTsanction 
dent  of  the  United  States  ;  and  before  the  same  shall  take  effect,  ^^  ^^^^^• 
shall  be  approved  by  him,  or  being  disapproved  by  him,  shall  be 
repassed  by  twothirds  of  the  senate  and  house  of  representatives, 
according  to  the  rules  and  hmitations  prescribed  in  the  case  of  a 
bill. 

SECTION    VIII. 

1.  The  congress  shall  have  power  to  lay  and  collect  taxes,  du- Congress  shall 
ties,  imposts  and  excises,  to  pay  the  debts  and  provide  for  the  to'^lay^axesj'&c. 
common  defence  and  general  welfare   of  the  United  States  ;  but 

all  duties,  imposts  and  excises  shall  be  uniform  throughout  the 
United  States  ; 

2.  To  borrow  money  on  the  credit  of  the  United  States  ;  2.  Bor.  money. 

3.  To  regulate  commerce  with  foreign  nations,  and  among  the  3  Remilate 
several  states,  and  with  the  Indian  tribes  ;  commerce. 

4.  To  estabhsh  an  uniform  rule  of  naturalization,  and  uniform  4.  Establish  the 
laws  on  the  subject  of  bankruptcies  throughout  the  United  States  5  [zition  and"^^^' 

5.  To  coin  money,  regulate   the  value  thereof,  and  of  foreign  ^'^"^^P^ '^^^• 

.  °    5.  Com  money, 

coin,  and  fix  the  standard  of  weights  and  measures  ;  &c.  and  fix 

^rrt  •  1     r        -I  -1  r  r  ■  •         ■,  •    Weights  and 

6.  lo  provide  tor  the  punishment  01  counterteitmg  the  securi-  measures, 
ties  and  current  coin  of  the  United  States  ;  pimishingcoun- 

7.  To  estabhsh  post  offices  and  post  roads  ;  r^^Establish 

8.  To  promote  the  progress  of  science  and   useful  arts,  by  se- ^p^/^^^^.'J^'^- 
curing  for  limited  times   to  authors  and  inventors   the   exclusive 

right  to  their  respective  writings  and  discoveries  ; 

9.  To  constitute  tribunals  inferior  to  the   supreme  court;  to  g,  t^  g^j^g^-^^^g 
define   and  punish  piracies   and  felonies  committed  on  the  high  infenortribu- 
seas,  and  offences  against  the  law  of  nations  ; 

10.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and  10.  To  declare 
make  rules  concerning  captures  on  land  and  water  ;  '^^^'  ^^^ 

11.  To  raise  and  support  armies,  but  no  appropriation  of  money  n.  Raise  ar- 
to  that  use  shall  be  for  a  longer  term  than  two  years  ;  "^^^'  ^'^' 

12.  To  provide  and  maintain  a  navy  ;  12.  Provide  a 

13.  To  make  rules  for  the   government  and   regulation  of  the  ^^l^^^j^^  j.yjgg 
land  and  naval  forces  ;  for  army  and 

navy. 

14.  To  provide  for  calHng  forth  the  mihtia  to  execute  the  laws  u.  Provide  for 
of  the  union,  suppress  insurrections  and  repel  invasions  ;  miliTil.  ""^^  '  ^ 

VOL.    I.  5 


34  CONSTITUTION    OF    THE    UNITED    STATES. 

15.  Provide  for  15.  To  provide  for  organizing,  arming  and  disciplining  the 
mflitia,  &c.  militia,  and  for  governing  such  part  of  them  as  may  be  em- 
ployed in  the  service  of  the  United  States,  reserving  to  the 
states  respectively,  the  appointment  of  the  officers,  and  the  au- 
thority of  training  the  militia  according  to  the  discipline  prescribed 
by  congress  ; 

16.  Exercise  16.   To  exei'cise  exclusive  legislation  in  all  cases  whatsoever, 

exclusive  juris-  it-/  t  m  \  i 

diction  over  a  over  such  district  (not  exceeding  ten  miles  square)  as  may,  by 
places  for  forts,  cession  of  particular  states,  and  the  acceptance  of  congress,  be- 
^^'  come  the  seat  of  the  government  of  the  United  States,  and  to  ex- 

ercise like  authority  over  all  places  purchased  by  the  consent  of 
the  legislature  of  the  state  in  which  the  same  shall  be,  for  the 
erection  of  forts,  magazines,  arsenals,  dock  yards,  and  other  need- 
ful buildings  ; — and, 

17.  Make  all  17.  To  make  all  laws  which  shall  be  necessary  and  proper  for 
toThe  execution  carrying  into  execution  the  foregoing  powers,  and  all  other  pow- 
of  their  powers.  gj.g  ^gg^g^  by  this  Constitution  in  the  government  of  the   United 

States,  or  in  any  department  or  officer  thereof. 

SECTION    IX. 

Importation  of  1  ■  The  migration  or  importation  of  such  persons  as  any  of  the 
not  tcTbe^pro"^  States  now  existing  shall  think  proper  to  admit,  shall  not  be  pro- 
ter'^isos^Ys^et  hibitcd  by  the  congress  prior  to  the  year  one  thousand  eight  hundred 
article  5.]         and  eight,  but  a  tax  or  duty  may  be  imposed  on  such  importation, 

not  exceeding  ten  dollars  for  each  person. 
Habeas.corpus,      2.   The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when  in  cases  of  rebelhon  or  invasion  the  pubhc 
safety  may  require  it. 
No  bill  of  at-         3.  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

tainder  or  ex  ^      at  •       ■  t  i     n  i       i    • 

post  facto  law.  4.  INo  capitation,  or  other  direct  tax  shall  be  laid,  unless  in  pro- 
according  to     portion  to  the  census  or  enumeration  herein  before  directed  to  be 

taken. 
No  export  duty,      5.  No  tax  or  duty  shall  be  laid  on   articles  exported  from  any 
of  onrstate  to  State.     No   preference   shall  be   given  by  any  regulation  of  com- 
^J|.*^''^^'^°'"'merce  or  revenue  to  the  ports  of  one  state  over  those  of  another  : 

nor  shall  vessels  bound  to,  or  from,  one   state,  be  obhged  to  enter, 

clear,  or  pay  duties  in  another. 
Public  moneys,      6.  No  money  shall  be   drawn  from  the  treasury,  but  in  conse- 
ow  rawn,&.c.q^gj^^g  q£  gp^jj^.Qpj,-^^jQj^g   made   bylaw;  and  a  regular  statement 

and  account  of  the  receipts  and  expenditures  of  all  public  money 

shall  be  published  from  time  to  time. 
No  titles  of  no-      7.  No  title  of  nobility  sliall  be   granted  by  the  United  States: 
sents,"&c.°^'^^'^'^^  ^^<^  Person  holding   any  office   of  profit  or  trust  under  them, 


CONSTITUTION    OF    THE    UNITED    STATES.  S5 

shall,  without  the  consent  of  congress,  accept  of  any  present, 
emolument,  office,  or  title,  of  any  kind  whatever,  from  any  king, 
prince,  or  foreign  state. 

SECTION    X. 

1.  No  state  shall  enter  into  any  treaty,  alliance,  or  confedera- Restrictions  on 

J  -i^  '  '  _    the  power  01  the 

lion  ;  grant  letters  of  marque  and  reprisal  ;  coin  money  ;  emit  states  individu- 
bills  of  credit  ;  make  any  thing  but  gold  and  silver  coin  a  tender 
in  payments  of  debts  ;  pass  any  bill  of  attainder,  ex  post  facto  law, 
or  law  impairing  the  obligation  of  contracts,  or  grant  any  title  of 
nobility. 

2.  No  state  shall,  without  the  consent  of  the  congress,  lay  any  Powers  which 

_  o  ^       ./         ./   jjjg  states  can 

imposts  or  duties  on  imports  or  exports,  except  what  may  be  ab-  exercise  only 

...  .         ,  under  the  sanc- 

solutely  necessaiy  tor  executing  its  inspection  laws  ;  and  the  net  tion of  con- 
produce  of  all  duties  and  imposts,  laid  by  any  state  on  imports  ^'^*^^^* 
or  exports,  shall  be  for  the  use  of  the  treasury  of  the  United 
States  ;  and  all  such  laws  shall  be  subject  to  the  revision  and  con- 
trol of  the  congress.  No  state  shall,  without  the  consent  of  con- 
gress, lay  any  duty  of  tonnage,  keep  troops,  or  ships  of  war  in 
time  of  peace,  enter  into  any  agreement  or  compact  with  another 
state,  or  with  a  foreign  power,  or  engage  in  war,  unless  actually 
invaded,  or  in  such  imminent  danger  as  will  not  admit  of  delay. 

ARTICLE  II. 

SECTION    I. 

1.  The  executive  power   shall  be  vested  in  a  president  of  the  Executive  pow- 

Gr  VGStGQ.  in  3, 

United  States  of  America.     He   shall  hold   his  office  during  the  president,  &c. 
term  of  four  years,  and,  together  with  the  vice-president,  chosen 
for  the  same  term,  be  elected  as  follows  : 

2.  Each  state  shall  appoint,  in  such  manner  as  the  legislature  Electors  of 

^  ^  "  president  and 

thereof  may  direct,  a  number  of  electors,  equal  to  the  whole  num- vice  president. 
her  of  senators  and  representatives  to  which  the  state  may  be  en- 
titled in  the  congress  :  but  no  senator  or  representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United  States,  shall 
be  appointed  an  elector. 

3.  The    electors   shall  meet  in  their    respective    states,    and  Meeting  of  the 

GlGctors  of 

vote  by  ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  president,  &c. 
an  inhabitant  of  the  same  state  with  themselves.     And  they  shall  annulied'^by  die 
make  a  list  of  all  the  persons  voted  for,   and  of  the  number  of  ^^[JJg^^'i^ 
votes  for  each  ;  which  list  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  seat  of  the  government  of  the  United  States,  direct- 


36 


CONSTITUTION    OF    THE    UNITED    STATES. 


ed  to  the   president  of  the  senate.     The  president  of  the  senate 
shall,  in  the  presence  of  the  senate  and  house  of  representatives, 
open   all   the   certificates,   and  the  votes   shall  then  be  counted. 
The  person  having  the  greatest  number  of  votes  shall  be  president, 
if  such  number  be  a  majority  of  the  whole  number  of  electors  ap- 
pointed ;  and  if  there  be  more  than  one  who  have  such  majority, 
and  have  an  equal  number  of  votes,  then  the  house  of  representa- 
tives  shall  immediately  choose  by  ballot   one  of  them  for  presi- 
dent ;  and  if  no  person  have  a  majority,  then  from  the  five  highest 
on  the  list  the  said  house  shall  in  like  manner  choose  the  president. 
But  in  choosing  the  president,  the  votes  shall  be    taken  by  states, 
the  representation  from  each  state  having  one  vote  ;  a  quorum  for 
this   purpose   shall   consist   of  a  member   or  members  from  two- 
thirds  of  the  states,  and    a  majority  of  all  the    states  shall  be  ne- 
cessary to  a  choice.     In  every  case,  after  the  choice  of  the  presi- 
dent, the  person  having  the  greatest  number  of  votes  of  the  elec- 
tors shall  be  the  vice-president.     But  if  there  should  remain  two 
or  more  who  have  equal  votes,  the  senate  shall  choose  from  them 
by  ballot  the  vice-president. 
Congi-ess  may       4.   The  congress  may  determine  the  time  of  choosing  the  elec- 
choosin™he°    tors,  and  the  day  on  which  they  shall  give  their  votes  ;  which  day 
electors,  &c.     g|^g]|  ^^  jj^g  same  throughout  the  United  States, 
aualifications        5.  No  person  except  a  natural  born  citizen,  or  a  citizen  of  the 
presi  en  .     United  States,  at  the   time   of  the  adoption  of  this  constitution, 
shall  be  eligible  to  the  office  of  president  ;  neither   shall  any  per- 
son be  eligible  to  that  office  who  shall  not  have  attained  to  the  age 
of  thirtyfive  years,  and  been  fourteen  years  a  resident  within  the 
United  States.  * 

In  case  of  va-       Q,  In  case  of  the   removal  of  the  president  from  office,  or  of 

cancy  in  the  of-     .      ,       ,  .  .  .      ,  .,.  t      i  i  i    i 

fice  of  presi-  his  death,  resignation  or  mability  to  discharge  the  powers  and  du- 
president  to  act,  ties  of  the  said  office,  the  same  shall  devolve  on  the  vice-presi- 
dent,  and  the  congress  may  by  law  provide  for  the  case  of  removal, 
death,  resignation  or  inability,  both  of  the  president  and  vice- 
president,  declaring  what  officer  shall  then  act  as  president,  and 
such  officer  shall  act  accordingly,  until  the  disability  be  removed, 
or  a  president  shall  be  elected. 
Compensation       7.   The  president  shall,  at  stated  times,  receive  for  his  services, 

to  the  president.  .  i  •    i      i    n  -  i  i        •  i  t     •    •  i      j 

a  compensation,  which  shall  neither   be  increased  nor  aiminisnea 

during  the  period  for  which  he   shall  have  been   elected,  and  he 

shall  not  receive  within  that  period  any  other  emolument  from  the 

United  States,  or  any  of  them. 

The  president        8.   Before  he  enters   on  the  execution  of  his   office,  he  shall 
to  take  an  oath.      ,        ,       ^  „       .  ,  ^^  • 

Form  of  the      take  the  lollowmg  oath  or  affirmation  : 
oath. 


4 


Wise. 


CONSTITUTION    OF    THE    UNITED    STATES.  37 

2.   "  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute     ' 
the  office  of  president  of  the  United  States,  and  will,  to  the  best 
of  my  ability,  preserve,  protect  and  defend  the  constitution  of  the 
United  States." 

SECTION    II. 

1.  The  president  shall  be  commander-in-chief  of  the  army  and  The  president  is 
navy  of  the  United  States,  and  of  the  militia  of  the  several  states,  chief— he  may 
when  called  into  the  actual  service  of  the  United  States  ;  he  may  [qIJ"  ^f  "P'^Jy, 
require  the  opinion,  in  writing,  of  the  principal   officer  in  each  ofandma^^^^' 
the  executive  departments,  upon  any  subject  relating  to  the  duties  pardons,  &c. 
of  their  respective  offices  ;  and  he  shall  have  power  to  grant  re- 
prieves and  pardons  for  offences  against  the  United  States,  except 

in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  consent  ofHemay  byad- 

^  .  .  .  ■^ice  of  the  sen- 

the    senate,  to  make  treaties,  provided  twothirds  of  the   senators  ate,  make  trea- 
present  concur  ;  and  he  shall  nominate,  and  by  and  with  the  ad-  ambassadors 
vice  and  consent  of  the   senate,  shall  appoint  ambassadors,  other  cers;  butcon'- 
pubhc  ministers  and  consuls,  judges  of  the  supreme  court,  and  all  feSn^appoint- 
other  officers  of  the  United   States,   whose  appointments  are  not  "^^'^^®°'^^^'^" 
herein  otherwise   provided  for,  and  which  shall  be  established  by 
law  :  but  the  congress   may  by  law  vest  the  appointment  of  such 
inferior  officers,  as  they  think  proper,  in  the  president  alone,  in  the 
courts  of  law,  or  in  the  heads  of  departments. 

3.  The  president  shall  have  power  to   fill  up  all  vacancies  that  President  may 
may  happen  during  the  recess  of  the  senate,  by  granting  commis- j-ecel's!^'^'^^^^  ^" 
sions  which  shall  expire  at  the  end  of  their  next  session. 

SECTION    III. 

He  shall  from  time  to  time  give   to  the  congress  information  of  President  to  re- 

,  f.    I  .  ,  J  1     •  •  1         •  1   commend  mea- 

the  state  ol  the  union,  ana  recommend  to  their  consideration  such  sures  to  con- 
measures  as  he  shall  judge  necessary  and  expedient  ;  he  may,  on  fonvene andad- 
extraordinaiy  occasions,  convene  both  houses,  or  either  of  them,  ^°"Jgj.^°!^^'"®^^_ 
and  in  case  of  disagreement  between   them,  with  respect  to  the  ^^°^^'  ^^^}^  ""e- 

'-'  _  •■■  ceive  ambassa- 

time  of  adjournment,  he  may  adjourn  them  to  such  time  as  he  shall  dors,  see  the 

Ielws  Gxccutcd 

think  proper  ;  he  shall  receive  ambassadors  and  other  public  min- and  commissioii 
isters  ;  he  shall  take  care  that  the  laws  be  faithfully  executed,  and 
shall  commission  all  the  officers  of  the  United  States. 

SECTION    IV. 

The  president,  vice-president,  and  all  civil  officers  of  the  Unit-  President  and 

■  otliGr  ofiiCGrs 

ed  States,  shall  be  removed  from  office  on  impeachment  for,  and  removable  by 
conviction  of,  treason,  bribery,  or  other  high  crimes  and  misde  ™P^^^  ^^'^  ■ 
meanors. 


38  CONSTITUTION    OF    THE    UNITED    STATES. 

ARTICLE    III. 


SECTION    I. 


Judicial  power       The  judicial  power  of  the  United  States  shall  be  vested  in  one 

vested,  in  £L  su- 

preme  court  &c.  supreme  court,  and  in  such  inferior  courts   as   the   congress  may 
tiieS^offices°     from  time  to  time  ordain  and  establish.     The  judges,  both  of  the 
behav1or°°'^      Supreme  and  inferior  courts,  shall  hold  their  offices  during  good 
behavior  ;  and  shall,  at  stated  times,  receive  for  their  services,  a 
compensation,  which  shall  not  be  diminished  during  their  continu- 
ance in  office. 


SECTION    II. 


Extent  of  the        1.   The  judicial  power  shall  extend  to  all  cases,  in  law  and  equi- 
ju  ci   power.  ^^^  arising  under  this  constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority  ; 
— to  all   cases  affecting  ambassadors,   other  public  ministers  and 
consuls  ; — to  all  cases  of  admiralty  and  maritime  jurisdiction  ; — 
to  controversies  to  which  the  United  States  shall  be  a  party  ; — to 
controversies  between  two   or  more  states  ; — between  a  state  and 
citizens  of  another  state  ; — between  citizens   of  different  states  ; 
— between  citizens  of  the  same   state  claiming  lands  under  grants 
of  different  states,  and  between   a  state,   or  the  citizens   thereof, 
and  foreign  states,  citizens  or  subjects.* 
Original  and         2.   In  all  cases  affecting  ambassadors,  other  pubhc  ministers  and 
diction^of\"iie'*'  consuls,  and  those  in  which  a  state   shall  be  party,  the  supreme 
supreme  court,  qquj-j  gj^all  have  Original  jurisdiction.     In  all  the  other  cases  before 
mentioned,  the   supreme  court  shall  have  appellate  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions,  and  under  such  re- 
gulations as  the  congress  shall  make. 
Trial  of  crimes      3.   The  trial  of  all   crimes,  except  in   cases   of  impeachment, 
to       y  jury,    gj^^jj  j^^  ^^  j^^,^  .  ^^^  such  trial  shall  be  held  in  the  state  where 

The  venue.  the  said  crime  shall  have  been  committed  ;  but  when  not  commit- 
ted within  any  state,  the  trial  shall  be  at  such  place  or  places  as 
the  congress  may  by  law  have  directed. 

SECTION    III. 

Definition  of         ^ '   Treason  against  the  United  States,  shall  consist  only  in  levy- 
treason,  &c.      jng  war  against  them,  or  in  adhering  to  their  enemies,  giving  them 
aid  and  comfort.     No  person  shall  be  convicted  of  treason  unless 
on  the  testimony  of  two   witnesses  to   the  same  overt  act,  or  on 
confession  in  open  court. 

[*  Amended,  see  art.  11.] 


CONSTITUTION    OF   THE    UNITED    STATES. 


39 


2.  The  congress  shall  have  power  to  declare  the  punishment  of  Congress  to  de- 

•        r  T_i     J  *^i^'^6  the  pun- 
treason,  but  no  attainder  of  treason  shall  work  corruption  oi  blood,  ishment  of trea- 

or  forfeiture,  except  during  the  life  of  the  person  attainted.  ' 


ARTICLE    IV. 

SECTION    I. 

Full  faith  and  credit  shall  be  given  in   each  state  to  the  public  Credit  to  be 

°  A      1  S^^^n  in  one 

acts,  records   and  judicial  proceedings  of  every  other  state.    And  state  to  the 
the  congress  may  by  general   laws  prescribe   the  manner  in  which  of  another.' 
such  acts,  records  and  proceedings  shall  be  proved,  and  the  effect 
thereof. 

SECTION    II. 

1 .  The  citizens  of  each  state  shall  be  entitled  to  all  privileges  Reciprocity  of 

^  "      citizenship 

and  immunities  of  citizens  in  the  several  states.  throughout  the 

2.  A  person  charged  in  any   state  with  treason,  felony,  or  other  Criminals  fly-  . 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  state,  state  to  another 
shall  on   demand   of  the   executive   authority   of   the   state   from  J°p^^  dehvered 
which  he  fled,  be  delivered  up,  to  be  removed  to  the   state  hav- 
ing jurisdiction  of  the  crime. 

3.  No  person  held  to  service  or  labor  in  one  state,    under  the  Runaway 
laws  thereof,  escaping  into  another,  shall,  in  consequence  of  any  delivered  up. 
law  or  regulation  therein,  be    discharged  from  such  service  or  la- 
bor, but  shall  be  delivered  up  on  claim  of  the  party  to  whom  such 

service  or  labor  may  be  due. 

SECTION    III. 

1.  New  states  may  be  admitted  by  the  congress  into  this  Union;  New  states  niay 

1  1    11    1        r  1  1        •  1  •        1       .      •    T       be  admitted  in- 

but  no  new  state  shall  be  lormed  or  erected  withm  the  jurisdic-  to  the  union, 
tion  of  any  other   state  ;  nor  any  state  be  formed  by  the  junction    ^' 
of  two  or  more   states,  or  parts  of  states,  without  the   consent  of 
the   legislatures  of  the   states   concerned  as  well  as  of  the  con- 
gress. 

2.  The  congress  shall  have  power  to  dispose  of  and  make  all  Congress  to 
needful  rules  and  regulations  respecting  the  territory  or  other  pro-  teTritory^&c° 
perty  belonging  to  the  United  States  ;  and  nothing  in  this  consti- 
tution shall  be   so   construed   as  to   prejudice   any   claims  of  the 

United  States,  or  of  any  particular  state. 

SECTION    IV. 

The  United  States  shall  guarantee  to  every  state  in  this  Union  Republican 
a  republican  form  of  government,  and  shall  protect  each  of  them  ment°gulran-"" 

teed  to  each 
state,  &c. 


40  CONSTITUTION    OF    THE    UNITED    STATES. 

against  invasion  ;  and  on  application  of  the  legislature,  or  of  the 
executive  (when  the  legislature  cannot  be  convened)  against  do- 
mestic violence. 

ARTICLE    V. 

Mode'ofamend-      The  congress  whenever  twothirds  of  both  houses  shall  deem   it 

ing  the  consti-  ,    „  ■,  ■,  .  .       . 

tution.  necessary,  shall  propose  amendments  to  this  constitution,  or,  on 

the  application  of  the  legislatures  of  twothirds  of  the  several 
states,  shall  call  a  convention  for  proposing  amendments,  which, 
in  either  case,  shall  be  valid  to  all  intents  and  purposes,  as  part  of 
this  constitution,  when  ratified  by  the  legislatures  of  threefourths 
of  the  several  states,  or  by  conventions  in  threefourths  thereof,  as 
the  one  or  the  other  mode  of  ratification  may  be  proposed  by  the 
congress  ;  Provided,  That  no  amendment  which  may  be  made 
prior  to  the  year  one  thousand  eight  hundred  and  eight  shall  in  any 
manner  affect  the  first  and  fourth  clauses  in  the  ninth  section  of 
the  first  article  ;  and  that  no  state,  without  its  consent,  shall  be 
deprived  of  its  equal  suffrage  in  the  senate. 


ARTICLE    VI. 

Assumption  of      i    ^]}  (Jebts  contracted  and  encasements  entered  into,  before  the 

debts  incurred  ~   ~  ' 

under  the  con-  adoption  of  this  Constitution,  shall  be  as  valid  against  the   United 

federation.  r-,  •  •       ■  i  r  • 

States  under  this  constitution,  as  under  the  confederation. 
This  constitu-       2.   This  constitution,  and  the  laws  of  the  United   States  which 

tion,  acts  of  con-  _ 

gress  and  trea-  shall  be  made  in  pursuance  thereof ;  and  all  treaties  made,  or  which 
supreme  law  —  shall  be  made,  under  the  authority  of  the  United  States,  shall  be 
bound^there^y^  the  Supreme  law  of  the  land  ;  and  the  judges  in  every  state   shall 

be  bound  thereby,  any    thing  in    the  constitution  or   laws  of  any 

state  to  the  contrary  notwithstanding. 
Members  of  3.   The  senators  and  representatives  before    mentioned,  and  the 

congress  and  01  ^  _ 

the  state  legis-  members  of  the  several  state    legislatures,    and  all  executive  and 
bound  by  oath  judicial  ofRcers,  both  of  the    United    States   and    of  the  several 
cons"itu°tion.  ^^  States,  shall  be  bound  by  oath  or  affirmation,  to  support  this  con- 
stitution ;  but  no  rehgious  test  shall  ever  be  required  as  a  qualifica- 
tion to  any  office  or  public  trust  under  the  United  States. 


ARTICLE    VII. 

^ne^tatersuf-      ^^^  ratification  of  the  conventions  of  nine  states,  shall  be  suf- 
ficient &c. 


CONSTITUTION    OF    THE    UNITED    STATES. 


41 


ficient  for  the  establishment  of  this  constitution  between  the  states 
so  ratifying  the  same. 

Done  in  convention,  by  the  unanimous  consent  of  the  states  present,  the  seven- 
teenth day  of  September  in  the  year  of  our  Lord  one  thousand  seven  hundred 
and  eightyseven,  and  of  the  independence  of  the  United  States  of  America  the 
twelfth.     In  witness  whereof  we  have  liereunto  subscribed  our  names. 

GEORGE  WASHINGTON, 

President,  and  deputy  from  Virginia. 

Delaware. 
GEORGE  READ, 
GUNNING  BEDFORD,  Jr., 
JOHN  DICKINSON, 
RICHARD  BASSETT, 
JACOB  BROOM. 


New  Hamp.shire. 
JOHN  LANGDON, 
NICHOLAS  OILMAN. 


Massachusetts 

NATHANIEL  GORHAM, 
RUFUS  KING. 


Connecticut. 

WILLIAM  SAMUEL  JOHNSON, 
ROGER  SHERMAN. 

New  York. 
ALEXANDER  HAMILTON. 

New  Jersey. 

WILLIAM  LIVINGSTON, 
DAVID    BREARLY, 
WILLIAM  PATTERSON, 
JONATHAN  DAYTON. 

Pennsylvania. 

BENJAMIN  FRANKLIN, 
THOMAS  MIFFLIN, 
ROBERT  MORRIS, 
GEORGE  CLYMER, 
THOMAS  FITZSIMONS, 
JARAD  INGERSOLL, 
JAMES  WILSON. 
GOVERNEUR  MORRIS. 

Attest, 


Maryland. 
JAMES  M'HENRY, 
DANIEL  OF  ST.  THOMAS  JENIFER, 
DANIEL  CARROLL. 

Virginia. 
JOHN  BLAIR, 
JAMES  MADISON,  Jr. 

North  Carolina. 

WILLIAM  BLOUNT, 
RICHARD  DOBBS  SPAIGHT, 
HUGH  WILLIAMSON. 

South  Carolina. 
J.  RUTLEDGE, 

CHAS.    COTESWORTH  PINCKNEY, 
CHARLES  PINCKNEY, 
PIERCE  BUTLER. 

Georgia. 
WILLIAM  FEW, 
ABR.  BALDWIN. 


William  Jackson,  Secretary. 


Resolved,  That  this  convention,  in  behalf  of  the  freemen,  citi- 
zens and  inhabitants  of  the  State  of  North  Carolina,  do  adopt 
and  ratify  the  said  constitution  and  form  of  government. 

SAMUEL  JOHNSTON,  President. 
By  order, 

J.  Hunt,  Secretary. 


IN  CONVENTION,  Monday,  September  17th,  1787. 

Present  :  the  states  of  New  Hampshire,  Massachusetts,  Con- 
necticut, Mr  Hamilton  from  New  York,  New  Jersey,  Pennsylva- 
nia, Delaware,  Maryland,  Virginia,  North  Carolina,  South  Carolina, 
and  Georgia. 

1.  Resolved,  That  the  preceding  constitution  be  laid  before  the  Constitution  to 
United  States  in  congress  assembled,  and  that  it  is  the  opinion  of ^nj^essf&c! 


VOL. 


6 


42'  CONSTITUTION    OF    THE    UNITED    STATES. 

this  convention,  that  it  should  afterwards  be  submitted  to  a  con- 
vention of  delegates  chosen  in  each  state  by  the  people  thereof, 
under  the  recommendation  of  its  legislature,  for  their  assent  and 
ratification  ;  and  that  each  convention  assenting  to,  and  ratifying 
the  same,  should  give  notice  thereof  to  the  United  States  in  con- 
gress assembled, 
adav^forap-^'^      ^'   R-ESGLVED,   That  it  is  the  Opinion  of  this  convention,  that  as 

pointing  elec-    goon  as  the  Conventions  of  nine  states  shall  have  ratified  this  con- 
tors  01  presi- 
dent, &c.         stitution,  the  United  States    in  congress    assembled,  should   fix   a 

day  on  which  electors   should  he  appointed  by  the   states   which 
shall  have  ratified  the  same,  and  a  day  on  which  the  electors  should 
assemble  to   vote  for  the  president,  and  the  time    and   place   for 
commencing  proceedings  under  this  constitution.     That  after  such 
Mode  recom-    publication,  the  electors  should  be  appointed,  and  the  senators  and 
rying  the  con-' I'Gp^esentatives  elected.      That  the  electors   should   meet  on    the 
effect^""  "^^°    day  fixed  for    the  election  of  the    president,  and    should   transmit 
their  votes,  certified,  signed,  sealed,  and    directed,  as  the  consti- 
tution requires,  to  the  secretary  of  the  United  States,  in  congress 
assembled  ;  that  the  senators  and  representatives  should  convene  at 
the  time  and  place  assigned  ;  that  the    senators    should   appoint  a 
president  of  the  senate,  for  the  sole  purpose  of  receiving,  open- 
ing, and  counting  the  votes  for  president  ;  and,  that  after  he    shall 
be  chosen,  the  congress,  together  with  the  president,  should,  with- 
out delay,  proceed  to  execute  this  constitution. 
By  the  unanimous  order  of  the  convention, 

GEORGE  WASHINGTON,  President. 
William  Jackson,  Secretary. 


IN  CONVENTION,  September  17th,  1787. 

Sir, 

Letter  from  the  ^  •  ^^  have  now  the  honor  to  submit  to  the  consideration  of 
framed\he  con'^  ^^®  United  States  in  congress  assembled,  that  constitution  which 
stitution,  to  the  has  appeared  to  us  the  most  advisable. 

president  of  ^  ^  . 

congress.  2.   The  friends  of  our  country  have  long  seen  and  desired,  that 

the  power  of  making  war,  peace,  and  treaties  ;  that  of  levying 
money,  and  regulating  commerce,  and  the  correspondent  execu- 
tive and  judicial  authorities,  should  be  fully  and  eiFectually  vested 
in  the  general  government  of  the  union  :  but  the  impropriety  of 
delegating  such  extensive  trust  to  one  body  of  men,  is  evident  ; 
hence  results  the  necessity  of  a  different  organization. 


CONSTITUTION    OF    THE    UNITED    STATES. 

3.  It  is  obviously  impracticable  in  the  federal  government  of 
these  states,  to  secure  all  rights  of  independent  sovereignty  to 
each,  and  yet  provide  for  the  interest  and  safety  of  all.  Individ- 
uals entering  into  society,  must  give  up  a  share  of  liberty  to  pre- 
serve the  rest.  The  magnitude  of  the  sacrifice  must  depend  as 
well  on  situation  and  circumstance,  as  on  the  object  to  be  obtained. 
It  is  at  all  times  difficult  to  draw  with  precision  the  line  between 
those  rights  which  must  be  surrendered,  and  those  which  may  be 
reserved  ;  and  on  the  present  occasion,  this  difficulty  was  increased 
by  a  difference  among  the  several  states  as  to  their  situation,  ex- 
tent, habits,  and  pai'ticular  interests. 

4.  In  all  our  deliberations  on  this  subject,  we  kept  steadily  in 
our  view,  that  which  appears  to  us  the  greatest  interest  of  every 
true  American,  the  consolidation  of  our  union,  in  which  is  involved 
our  prosperity,  felicity,  safety,  perhaps  our  national  existence. 
This  important  consideration,  seriously  and  deeply  impressed  on 
our  minds,  led  each  state  in  the  convention  to  be  less  rigid  on 
points  of  inferior  magnitude,  than  might  have  been  otherwise  ex- 
pected ;  and  thus  the  constitution,  which  we  now  present,  is  the 
result  of  a  spirit  of  amity,  and  of  that  mutual  deference  and  con- 
cession, which  the  pecuharity  of  our  pohtical  situation  rendered 
indispensable. 

5.  That  it  will  meet  the  full  and  entire  approbation  of  every 
state,  is  not  perhaps  to  be  expected  ;  but  each  will  doubtless  con- 
sider, that  had  her  interest  been  alone  consulted,  the  consequences 
might  have  been  particularly  disagreeable  or  injurious  to  others  ; 
that  it  is  liable  to  as  few  exceptions  as  could  reasonably  have  been 
expected,  we  hope  and  believe  ;  that  it  may  promote  the  lasting 
welfare  of  that  country  so  dear  to  us  all,  and  secure  her  freedom 
and  happiness,  is  our  most  ardent  wish.  With  great  respect,  we 
have  the  honor  to  be,  sir,  your  excellency's  most  obedient  and 
humble  servants. 

By  unanimous  order  of  the  convention. 

GEORGE  WASHINGTON,  President. 

His  Excellency  the  President  of  Congress, 


43 


AMENDMENTS   TO   THE    CONSTITUTION. 


ARTICLE  I. 


Congress  pro-        CoNGRESs  shall  make  no  law  respecting  an  establishment  of  re- 

mbited  irom  in-  ...  ^  . 

terfering  with  ligion,  or  prohibiting  the  free  exercise  thereof ;  or  abridging  the 
freedom  of  freedom  of  speech,  or  of  the  press  ;  or  of  the  people  peaceably 
press  Mdthe    to  assemble,  and  to  petition  the  government  for  a  redress  of  griev- 


nghtofpeti-     ^^^^^ 


ARTICLE  11. 


Right  of  the         ^  ^gll  regulated  militia  being  necessary  to   the   security  of  a 

people  to  keep  '='      .  o  ./  j 

and  bear  arms,  free  State,  the  right  of  the  people  to  keep  and  bear  arms  shall  not 

&C 

be  infringed. 

ARTICLE  III. 

No  soldier  to         j^q  soldier  shall,  in  time   of  peace,  be  quartered  in  any  house 

be  quartered  in  -'  .         .  . 

any  house,  dur-  without  the  consent  of  the  owner  ;  nor  in  time   of  war,  but  in  a 

ing  peace,  with-  -i     j  i       i 

out  consent,      manner  to  be  prescribed  by  law. 

&c. 

ARTICLE  IV. 

No  search  war-      'pjjg  x\?hi  of  the  people  to  be  secure  in  their  persons,  houses, 

rant  to  issue,  °  .  . 

except  on  pro-  papers,  and  effects  against  unreasonable  searches  and  seizures,  shall 
oath,  &c.   '      not  be  violated  ;  and  no  warrants   shall   issue,  but  upon  probable 
cause,  supported  by   oath  or  affirmation,  and  particularly  describ- 
ing the  place  to  be  searched,  and  the  persons  or  things  to  bo 
seized. 

ARTICLE  V. 

No  person  to  No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  in- 
swer  for  a  famous  Crime,  unless  on  a  presentment  or  indictment  of  a  grand 
on  presentment,  ju'^y  5  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
^'^•,*^^^®P^'^^^  militia,  when  in  actual  service,  in  time  of  war  or  pubHc  danger  ; 
val  forces,  nor  nor  shall  any  person  be  subject  for  the  same  offence   to  be  twice 

to  answer  for  .       ,         •'    ^  . 

the  same  of-     put  m  jeopardy  of  life  or  limb  ;  nor  shall  be   compelled  in   any 
'  criminal  case,  to  be  a  witness  against  himself,  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process   of  law  ;  nor   shall 
private  property  be  taken  for  public  use  without  just  compensa- 
tion. 


CONSTITUTION   OF    THE    UNITED    STATES. 


ARTICLE  VI. 


45 


In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  fp^^^^'J'^'Jf/ 
a  speedy  and  public  trial,  by  an  impartial  jury  of  the   state  and  pubiic^triai^by 
district  wherein  the  crime  shall  have  been  committed,  which  dis-  criminal  pros- 

•       1  1        1  J  u     •       ecutions. 

trict  shall  have  been  previously  ascertamed  by  law,  and  to  be  m- 
formed  of  the  nature  and  cause  of  the  accusation  ;  to  be  confront- 
ed with  the  witnesses  against  him  ;  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor  ;  and  to  have  the  assistance  of 
counsel  for  his  defence. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall  ^^iS^toC^ti'jal^^ 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserv-  ^^^°™^°'^^^^^^g' 
ed  ;  and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  of  twenty  dol- 
any  court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law. 

ARTICLE  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  ™pos-^j^^^'^^^®^^.^^g^'^j['ij|( 

cruel 
ments 
ited. 


ed,  nor  cruel  and  unusual  punishments  inflicted.  cruel  pumsh- 

^  ments,  prohib 


ARTICLE  IX. 

The  enumeration  in  the  constitution,  of  certain  rights,  shall  not  Rights  enume- 

'  _  1         rated  not  to  dis- 

be  construed  to  deny  or  disparage  others  retained  by  the  people,    parage  those 

retained. 

ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the  constitu- Powers  not  del- 
tion,  nor  prohibited  by  it  to   the   states,  are  reserved  to  the  states  reserved  to  the 

^•1  1     ^1  1  states  or  peo- 

respectiveiy,  or  to  the  people.  pie. 

ARTICLE    XL 

The  judicial  power  of  the  United  States  shall  not  be  construed  Restriction  of 

,  .     .      ,  .  ,  judicial  powers. 

to  extend  to  any  suit  m  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  state,  or 
by  citizens  or  subjects  of  any  foreign  state. 

ARTICLE  XII. 

1.   The  electors  shall  meet  in  their  respective  states,  and  vote  Mode  of  elect- 
by  ballot  for  president  and  vice-president,  one  of  whom,  at  least,  Jfent^arXvke- 
shall  not  be  an  inhabitant  of  the   same  state  with  themselves;  they  P[*^?^'^?"g "^ ^^® 
shall  name  in  their  ballots  the  person  voted  for  as  president,  and  in 
distinct  ballots  the  person  voted  for  as  vice-president ;  and  they 


46  CONSTITUTION    OF    THE    UNITED   STATES. 

shall  make  distinct  lists  of  all  persons  voted  for  as  president,  and 
of  all  persons  voted  for  as  vice-president,  and  the  number  of  votes 
for  each,  which  Hsts  they  shall  sign  and  certify,  and  transmit  seal- 
ed to  the  seat  of  the  government  of  the  United  States,  directed 
to  the  president  of  the  senate  ;  the  president  of  the  senate  shall, 
in  the  presence  of  the  senate  and  house  of  representatives,  open 
all  the  certificates,  and  the  votes  shall  then  be  counted  :  the  per- 
son having  the  greatest  number  of  votes  for  president,  shall  be  the 
president,  if  such  number  be  a  majority  of  the  whole  number  of 
electors  appointed  ;  and  if  no  person  have  such  majority,  then 
from  the  persons  having  the  highest  numbers,  not  exceeding  three, 
on  the  list  of  those  voted  for  as  president,  the  house  of  represen- 
tatives shall  choose  immediately,  by  ballot,  the  president.  But  in 
choosing  the  president,  the  votes  shall  be  taken  by  states,  the  re- 
presentation from  each  state  having  one  vote  ;  a  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  twothirds  of 
the  states,  and  a  majority  of  all  the  states  shall  be  necessary  to  a 
choice.  And  if  the  house  of  representatives  shall  not  choose  a 
president  whenever  the  right  of  choice  shall  devolve  upon  them, 
before  the  fourth  day  of  March  next  following,  then  the  vice-pre- 
sident shall  act  as  president,  as  in  the  case  of  the  death  or  other 
constitutional  disability  of  the  president. 

2.  The  person  having  the  greatest  number  of  votes  as  vice- 
president,  shall  be  the  vice-president,  if  such  number  be  a  major- 
ity of  the  whole  number  of  electors  appointed  ;  and  if  no  person 
have  a  majority,  then  from  the  two  highest  numbers  on  the  list, 
the  senate  shall  choose  the  vice-president :  a  quorum  for  the  pur- 
pose shall  consist  of  twothirds  of  the  whole  number  of  senators, 
and  a  majority  of  the  whole  number  shall  be  necessary  to  a 
choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office  of  pre- 
sident, shall  be  eligible  to  that  of  vice-president  of  the  United 
States. 


REVISED    STATUTES 


CHAPTER  1. 


REVISED     STATUTES 


AN  ACT  CONCERNING  THE  REVISED  STATUTES. 


Section 

1 .  When  the   revised   statutes  shall  go 

into  operation. 

2.  Former  acts    on  the   subjects    em- 

braced in  the  revised  statutes,  and 
all  British  statutes  repealed  after  the 
1st  of  January,  1838. 

3.  Effect  of  such  repeal   on  rights  ac- 

crued or  suits  commenced. 

4.  Effect  of   such  repeal    on  offences 

committed  or  penalties  incurred. 

5.  Effect  on  suits  or  prosecutions  com- 

menced for  offences. 

6.  No  act  heretofore  repealed   shall  be 

revived  by  such  repeal. 

7.  Effect  of  the  repeal  on  persons  hold- 

ing offices. 


Section 
8.  What  acts  are  not  included  in  the 
repealing  clause. 

How  the  revised  statutes  shall  be 
published.  What  shall  be  ^con- 
tained  in  the  first  volume. 

What  in  a  second  volume. 

Number  of  copies  to  be  published 
—  Copy  right  to^be "secured  to  the 
State. 

How  the  copies^.shall  be  distributed 
or  disposed  of. 

The  governor  to  make  compensa- 
tion to  the  superintendents. 

The  copies  so  prmted  to  be  received 
as  evidence. 


9. 


10. 
11. 


12. 


13. 


14. 


1.  Be  it  enacted  by  the  GeneralJlssemhly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted    by  the    authority  of  the  same. 
That  the  followmg  acts  passed  at  the  present  session  of  this  Gen- When  the  re- 
eral  Assembly,  and  known  as  "  The  Revised  Statutes,"  shall  take  J^^^f^  ^J^^J^'^^^^ 
effect  and  go  into  operation  on  the  first   day    of  January  next  and  operation. 
not  sooner,  except  those  as  to  which  a    different  provision  is    ex- 
pressly made  therein  and    the  acts  concerning  courts    of  justice, 
the  militia,  the  collection  and  management  of  the    public    revenue, 
the  treasurer  of  the  State    and   comptroller,  pilots  and   pilotage, 
salaries  and  fees,  which  shall  take  effect  immediately  ;  to  wit : 

An  act  ascertaining  the  mode  of  proving  book  debts. 

An  act  concerning  entries  and  grants  of  land. 

An  act  concerning  wrecks  and  wrecked  property. 

An  act  concerning  the  militia  of  this  State. 

An  act  concerning  pubhc  documents. 

An  act  concerning  the  mode  of  choosing  senators  and  repre- 
sentatives in  the  congress  of  the  United  States. 

7.  An  act  concerning  bastardy  and  prescribing'the  mode  of  le- 
gitimating bastard  children  in  certain  cases. 

8.  An  act  concerning  divorce  and  alimony. 

9.  An  act  concerning  attorneys  at  law. 

10.  An  act  concerning  constables. 

1 1 .  An  act  providing  for  the  support  of  the  poor. 

VOL.    I.  7 


1. 

2. 
3. 
4. 
5. 
6. 


50 


REVISED    STATUTES.  [ChaP.    I. 

12.  An  act  concerning  bail  in  civil  cases. 

13.  An  act  concerning  executors  and  administrators. 

14.  An  act  concerning  coroners. 

15.  An  act  concerning  the  comptroller. 

16.  An  act  concerning  quarantine  and  to  prevent  the   introduc- 
tion and  communication  of  contagious  diseases. 

17.  An  act  concerning  the  treasurer  of  the  State. 

18.  An  act  to  provide  for  the  collection  and  management  of  a 
revenue  for  this  State. 

19.  An  act  concerning  rehgious  societies  and  congregations. 

20.  An  act  prescribing  what  shall  be  evidence  in  certain  cases. 

21.  An  act  to  prevent  the  abatement  of  suits  in  certain  cases. 

22.  An  act  to  prevent  the  destruction  of  oysters  in  this  State. 

23.  An  act  concerning  the  secretary  of  State. 

24.  An  act  concerning  mad  dogs. 

25.  An  act  concerning  last  wills  and  testaments. 

26.  An  act  for  the  relief  of  such  persons  as  have  been  disabled 
by  wounds  or  rendered  incapable  of  procuring  for  themselves  and 
famihes,  subsistence,  in  the  militia  service  of  this  State,  and  pro- 
viding for  the  widows  and  orphans  of  such  as  have  died. 

27.  An  act  concerning  overseers. 

28.  An  act  for  restraining  the  taking  of  excessive  usury. 

29.  An  act  providing  for  the  appointment  of  electors  to  vote 
for  a  president  and  vice-president  of  the  United  States. 

30.  An  act  concerning  the  action  of  replevin. 

31.  An  act  concerning  hunting. 

32.  An  act  concerning  the  currency  of  this  State. 

33.  An  act  concerning  the  draining  of  lands. 

34.  An  act  providing  for  the  appointment  of  notaries. 

35.  An  act  concerning  corporations. 

36.  An  act  to  establish  a  fund  for  internal  improvement  and  to 
create  a  board  for  the  management  thereof. 

37.  An  act  prescribing  a  mode  by  which  partition  of  real  and 
personal  estates  may  be  made  among  tenants  in  common,  and  in 
what  cases  such  estates  may  be  sold  for  a  division. 

38.  An  act  to  reduce  into  one  the  several  acts  concerning  pilots 
and  commissioners  of  navigation. 

39.  An  act  concerning  the  attorney  general  and  solicitors  for 
the  State. 

40.  An  act  concerning  strays. 

41.  An  act  concerning  idiots  and  lunatics. 

42.  An  act  concerning  weights  and  measures. 

43.  An  act  authorizing  attachments  to  issue  for  the  recovery  of 
debts  and  directing  the  proceedings  thereon. 

44.  An  act  concerning  iron  and  gold  mines. 

45.  An  act  concerning  fences. 

46.  An  act  to  regulate  descents. 

47.  An  act  concerning  the  appointment  and  duties  of  a  patrol  in 
each  county. 

48.  An  act  concerning   legacies,  filial  portions  and  distributive 
shares  of  intestates'  estates. 


Chap.  I.]  revised  statutes.  51 

49.  An  act  concerning  cattle,  horses  and  hogs. 

50.  An  act  for  the  rehef  of  sick  and  disabled  American  sea- 
men. 

51.  An  act  concerning  the  repeal  of  statutes. 

52.  An  act  concerning  incorporated  towns. 

53.  An  act  to  enable  women  in  certain  cases  to  maintain  actions 
of  slander. 

54.  An  act  concerning  charities. 

55.  An  act  for  regulating  ordinaries. 

56.  An  act  concerning  the  university  of  North  Carolina. 

57.  An  act  for  the  more  effectual  suppressing  of  vice  and  im- 
morality. 

58.  An  act  prescribing  the  mode  of  recovering  against  certain 
officers  therein  mentioned  and  their  securities. 

59.  An  act  concerning  apprentices. 

60.  An  act  concerning  oaths. 

61.  An  act  concerning  the  governor  and  council  of  state. 

62.  An  act  concerning  the  improvement  of  rivers  and  creeks 
and  to  prevent  obstructions  to  their  navigation. 

63.  An  act  concerning  mills  and  mihers. 

64.  An  act  concerning  the  appointment  of  guardians  and  the 
management  of  orphans  and  their  estates. 

65.  An  act  for  the  relief  of  insolvent  debtors. 

66.  An  act  concerning  the  supreme  court. 

67.  An  act  concerning  courts  of  equity. 

69.  An  act  concerning  the  powers  and  jurisdiction  of  justices 
of  the  peace. 

70.  An  act  appointing  commissioners  to  take  affidavits. 

71.  An  act  to  empower  the  several  county  courts  to  establish 
fairs  in  their  respective  counties. 

72.  An  act  declaring  what  parts  of  the  common  law  shall  be  in 
force  in  this  State. 

73.  An  act  prescribing  the  salaries  and  fees  of  the  several  offi- 
cers in  this  State. 

74.  An  act  concerning  offices. 

75.  An  act  concerning  the  burning  of  woods. 

76.  An  act  concerning  the  seat  of  government  and  public 
buildings. 

77.  An  act  concerning  surety  and  principal. 

78.  An  act  to  create  a  fund  for  the  establishment  of  common 
schools. 

79.  An  act  providing  for  the  appointment  and  directing  the  du- 
ties of  county  trustees. 

80.  An  act  concerning  bills,  bonds  and  promissory  notes. 

81.  An  act  prescribing  the  mode  of  subjecting  the  lands  of 
deceased  debtors  for  the  payment  of  their  debts. 

82.  An  act  concerning  auctions  and  auctioneers. 

83.  An  act  concerning  the  clerks  of  the  county  and  superior 
courts. 

84.  An  act  concerning  deeds  and  conveyances  of  lands  and 
slaves,  mortgages  and  powers  of  attorney,  their  execution,  probate 
and  registration. 


52  REVISED    STATUTES.  [ChAP.    I. 

85.  An  act  concerning  sheriffs. 

86.  An  act  for  limiting  the  time  within  which  actions  may  be 
brought  and  for  quieting  the  title  to  lands  and  slaves,  and  pre- 
scribing the  time  within  which  presumption  of  satisfaction  may  arise. 

87.  An  act  concerning  waste. 

88.  An  act  concerning  gaming. 

89.  An  act  concerning  the  processioning  of  lands. 

90.  An  act  concerning  courts  of  justice,  practice,  pleas  and 
process, 

91.  An  act  concerning  registers. 

92.  An  act  prescribing  the  disposition  of  money  remaining  in 
the  hands  of  clerks  and  sheriffs  a  certain  time. 

93.  An  act  concerning  court  houses,  prisons  and  stocks,  and 
prescribing  the  appointment  and  duties  of  the  treasurer  of  public 
buildings. 

94.  An  act  concerning  the  appointment  and  duties  of  clerks 
and  masters  in  equity. 

95.  An  act  concerning  county  revenue  and  county  charges. 

96.  An  act  concerning  marriage. 

97.  An  act  concerning  prisoners. 

98.  An  act  for  the  prevention  of  frauds  and  fraudulent  convey- 
ances. 

99.  An  act  concerning  estates. 

100.  An  act  concerning  crimes  and  punishments. 

101.  Aq  act  concerning  executions  and  execution  sales. 

102.  An  act  concerning  appeals  and  proceedings  in  the  nature 
of  appeals. 

103.  An  act  concerning  the  General  Assembly  of  the  State  of 
North  Carolina. 

104.  An  act  concerning  the  public  roads,  ferries  and  bridges 
in  this  State. 

105.  An  act  concerning  slaves  and  free  persons  of  color. 

106.  An  act  concerning  forcible  entry  and  detainer. 

107.  An  act  concerning  writs  of  quo  warranto  and  mandamus. 

108.  An  act  to  prohibit  the  circulation  of  bank  notes  under  five 
dollars. 

109.  An  act  concerning  the  amendment  of  process,  pleadings 
and  other  proceedings  at  law. 

110.  An  act  concerning  widows. 

111.  An  act  to  prevent  the  taking  away  of  boats,  canoes  and 
pettiaugers  from  landings  or  elsewhere  without  leave. 

112.  An  act  concerning  the  public  arms. 

113.  An  act  concerning  proceedings  in  criminal  cases. 

114.  An  act  for  the  better  security  of  personal  liberty. 

115.  An  act  for  establishing  public  landings  and  places  of  in- 
spection, and  for  the  appointment  of  inspectors  and  regulation  of 
inspections. 

Former  acts  on  2.  All  acts  and  parts  of  acts  passed  before  the  present  session 
the  sub^ects^  ^f  j-j^jg  General  Assembly,  the  subjects  whereof  are  revised  and 
the  revised  rc-enacted  in  the  revised  statutes,  or  which  are  repugnant  to  the 
^n  British"'^     provisions  therein  contained,  and  all  the  statutes  of  England  or 


Chap.  L]  revised  statutes.  53 

Great  Britain  heretofore  in  use  in  this  State,  are  hereby  declared  statutes  repeal- 
to  be  repealed  and  of  no  force  and  effect  from  and  after  the  first  ^^gj^fYj^^Jj^ 
day  of  January  next,  with  the  exceptions  and  limitations  hereafter  i83s. 
mentioned. 

3.  The  repeal  of  the  acts  and  statutes  mentioned  in  the  next  Effect  of  such 
preceding  section  shall  not  affect  any  act  done,  or  any  right  accru-  Accrued "riiitl 
ing  or  accrued  or   estabhshed,  or  any  suit  or  proceedings  had  or  oommeuced. 
commenced  in  any  case  before  the  time  when  such  repeal  shall 

take  effect,  but  the  proceedings  in  every  such  case  shall  be  con- 
formed where  necessary  to  the  provisions  of  the  revised  statutes. 

4.  No    offence    committed,    and    no    penalties    or   forfeitures  ^^®°^  °^  ^^^^ 
incurred,  under  any  of  the  acts  hereby  repealed  and  before  the  fences  commit- 
time  when  such  repeal  shall  take  effect,  shall  be  affected  by  the  ^?^  °^  penai- 

,  ,     '■       ,  .  -.        ^  ,  r     r  •  ties  incurred. 

repeal,  except  that  when  any  punishment,  penalty,  or  forfeiture 
shall  have  been  mitigated  by  the  provisions  of  the  revised  statutes, 
such  provisions  may  be  extended  and  apphed  to  any  judgment  to 
be  pronounced  after  the  said  repeal. 

5.  No  suit  or  prosecution  pending  at  the  time  of  the  said  repeal  ^^'^'^^  °"  ^^^^'^ 

P  ™  -iri  r  J^,       or  prosecutions 

tor  any  offence  committed,   or  lor  the  recovery  oi  any  penalty  commenced  for 
or  forfeiture  incurred,  under  any  of  the  acts  hereby  repealed,  shall  offences. 
be  affected  by  such  repeal,   except  that  the  proceedings  in  such 
suit  or  prosecution  shall   be   conformed  when  necessary  to  the 
provisions  of  the  revised  statutes. 

6.  No  act  which  has  heretofore  been  repealed,  shall  be  revived  No  act  hereto- 
by  the  repeal  contained  in  this  act,  of  any  of  the  acts  herein  before  shall'^be  re-^ 
mentioned.  vived  by  such 

7.  All  persons  who,  at  the  time  when  the  said  repeal  shall  take  E^ect  of  the 
effect,  shall  hold  any  office  under  any  of  the  acts  hereby  repealed,  repeal  on  per- 
shall  continue  to  hold  the  same  according  to  the  tenure  thereof,  offices.      ° 
except  those  offices   which  may  have  been  abohshed,  and  those 

as  to  which  a  different  provision  shall  have  been  made  by  the 
revised  statutes. 

8.  No  act  of  a  private  or  local  nature,  no   act  containing    a  What  acts  are 
grant  of  corporate  privileges   for  any  purpose,  no    act  granting  "j^g  ^^"p^^^j?^" 
privileges  or  imposing  duties  in  any  particular  county  inconsistent  clause. 

with  the  general  provisions  of  law,  no  act  regulating  the  time, 
place  and  manner  of  elections,  musters  or  reviews  in  any  county, 
no  act  relating  to  fisheries  in  any  particular  section  of  the  country, 
no  act  providing  for  the  support  of  the  poor  in  any  county,  and  no 
act  directed  to  be  pubhshed  by  the  tenth  section  of  this  act,  shall 
be  construed  to  be  repealed  by  the  second  section  of  this  act. 

9.  The  revised  statutes  enumerated  in  the  first  section  of  this  How  the  re- 
act, shall  not  be  pubhshed  in  the   usual  pamphlet  form,    (except  shall  be  pub- 
those  hereinbefore  directed  to  take  effect  immediately,)  with  the 'i*ed. 
other  acts   of  the   present  session,   but  shall  be  pubhshed  in    a 
separate  volume,  under  the  superintendence  and   direction  of  two 
commissioners  to  be  appointed  by  the  governor,  who,  in    case  of 
vacancy  after  the  appointment,  shall  fill  the  same  ;  who  shall  pro- 
cure the  same  to  be  done  in  good  style  upon  the  most  economical 

terms,  giving  a  preference,  when  the  style  and  terms  of  printing 
are  equal,  to  the  printers  of  this  State,  and  shall  take  bond,  for  the 


54  REVISED    STATUTES.  [ChaP.    I. 

faithful  performance  of  the  work,  of  those  who  may  undertake  the 
same.     They  shall  be  arranged  in  the  publication  in  alphabetical 
order,  according  to  their  heads  or  titles,  with  maj'ginal  references 
as  reported  by  the  commissioners  of  revisal,  and  also  with  refer- 
ences   to  the  decisions  of  the  supreme  court  upon  their  subject 
What  shall  be  matter,  and  with  a  full  index.     In  the  same  volume  shall  be  pub- 
the  fosrvol^     lished   the  constitution  of  the  United  States,  and  the    constitution 
ume.  and  bill   of  rights    of  this    State,    and  the  Mecklenburg  declara- 

tion of  independence,  with  a  short  narrative  thereof;  there  shall 
also  be  published  in  the  same  volume  the  acts  of  a  public  nature 
passed  at  this  session,  excluding  all  acts  granting  corporate  priv- 
ileges. 
What  in  a  sec-  10.  There  shall  be  pubhshed  in  a  second  volume  the  second 
Olid  volume,  charter  of  Charles  the  Second  to  the  lords  proprietors  of  this 
State,  the  great  deed  of  grant  from  the  lords  proprietors,  the 
grant  from  George  the  Second  to  Earl  Granville,  and  the  following 
acts,  to  wit : — All  the  acts  relating  to  the  boundary  of  the  State 
and  its  several  counties,  all  acts  ceding  the  lands  of  this  State  to 
the  general  government,  all  acts  incorporating  banks,  and  rail 
road,  turnpike  and  navigation  companies,  which  are  now  in  force 
and  use,  all  acts  relative  to  the  incorporation  or  the  corporate 
powers  of  the  trustees  of  the  university,  and  such  other  acts  now 
in  force  and  not  repealed  by  this  act,  as  the  superintendents  may 
in  their  discretion  think  proper  to  place  in  the  said  second  volume. 
Number  of  11.   There   shall  be  published  of  the  first  volume  of  the  said 

*^°hrsh"i^*^  revised  statutes  five  thousand  copies,  and  of  the  second  volume 
C  y  right  to  One  thousand  copies,  the  copy  right  whereof  shall  be  secured  to 
til  ^stT^*^  ^°  ^'^^^  State  by  the  said  superintendents,  and  the  expense  of  pre- 
paring, printing,  pubhshing,  binding  and  distributing  said  copies 
shall  be  paid  by  the  public  treasurer  on  the  warrant  of  the  gov- 
ernor, founded  on  requisitions  made  from  time  to  time  by  the  said 
superintendents. 
How  the  copies  12.  The  said  copies,  when  completed,  shall  be  distributed 
tribiited  and  under  the  direction  of  the  governor,  as  follows,  to  wit  : — To  the 
disposed  of.  hbrary  of  the  congress  of  the  United  States  ten  copies  ;  to  the 
several  states  and  territories  three  copies  each  ;  to  the  library  of 
the  university  of  North  Carolina  three  copies  ;  to  the  governor, 
treasurer,  secretary  of  state,  and  comptroller,  two  copies  each 
for  the  use  of  their  respective  offices  ;  to  the  state  library  five 
copies  ;  to  the  clerks  of  both  houses  of  the  General  Assembly,  five 
copies  each  for  the  use  of  their  respective  houses  ;  to  the  clerk  of 
the  supreme  court,  and  the  clerks  of  the  several  superior  and 
county  courts,  one  copy  each  for  the  use  of  their  respective  courts  ; 
to  the  judges  of  the  supreme  and  superior  courts  one  copy  each  ; 
to  the  members  of  the  present  General  Assembly,  who  shall  not 
be  justices  of  the  peace  on  the  first  day  of  January,  one  thousand 
eight  hundred  and  thirtyeight,  one  copy  each ;  and  to  the  justices 
of  the  peace  of  the  several  counties  one  copy  each  of  the  first 
volume  only.  All  the  remaining  copies  shall  be  sold  for  the  ben- 
efit of  the  state  by  such  person,  in  such  manner  and  upon  such 
terms  as  the  governor  shall  direct  and  appoint. 


Chap.  IL] 


ABATEMENT. 


55 


13.  The  said  volumes  shall  be  published  as  speedily  as  prac- The  governor 
ticable,  and  when  completed  and  delivered  to  the  order  of  the  p°nsation°to" 
governor,  the  superintendents   shall  receive  such  compensation  as  i,he  superiiueu- 
to  the  governor  shall  seem  just  and  reasonable,  to   be  paid  by  the 

public  treasurer  upon  his  warrant. 

14.  The  copies  of  the  revised  statutes  which  shall  be  printed  The  copies  so 
as  aforesaid,  shall  be  received  as  evidence  of  the  law  before  all  received  ° 
tribunals  and  in  all  places,  in  the  same  manner,  to  all  intents  andidence. 
purposes  as  the  originals  in  the  office  of  the  secretary  of  state. 

[Ratified  23d  January,  1837.] 


as  ev- 


CHAPTER  2. 


ABATEMENT. 


AN  ACT  TO  PREVENT  THE  ABATEMENT  OF  SUITS  IN  CERTAIN 

CASES. 


Section 
1.  Suits  uot  to  abate  by  the  death  of  par- 
ties. 

Nor  where  a  term  intervenes  be- 
tvsreen  the  death  of  a  party  and  the 
qualification  of  ids  executor  or  ad- 
ministrator. 

Nor  while  a  contest  is  pending  for  ad- 
ministration or  for  probate  of  a  will. 

Nor  by  the  marriage  of  the  plaintiff 
— Husband  made  party  to  give  new 
security  for  the  costs. 

Nor  by  the  marriage  of  a  feme  sole 
defendant. 


2. 


3. 


Section 

6.  Nor  by  the  death  of  an  executor  or 

administrator,  plaintiff  or  defendant. 

7.  Action  of  ejectment  on  the  death  of 

the  defendant  may  be  revived  against 
his  heirs  or  devisees. 

8.  Court   may  appoint  guardians  for  in- 

fant defendants  in  ejectment. 

9.  How  service  to  be   made  when  heirs 

or  devisees  are  out  of  the  State. 

Actions  of  detinue  or  trover,  or  for  in- 
juries to  real  or  personal  property,  not 
to  abate  by  the  death  of  either  party. 

Appeals  not  to  abate  by  the  death 
of  either  party. 


10. 


11 


1.  Be  it  enacted  by   the    General   Assembly  of  the    State    o/Suitsnotto 
J^orth  Carolina,  and  it  is  hereby  enacted  by  the  authority  of  ^Ae  death  of  par- 
same,  That  it  shall  and  may  be  lawful  for  the  heirs,  executors,  or  ties, 
administrators  to  carry  on  every  suit  or  action  in  courts  after  the 

death  of  either  plaintiff  or  defendant,  and  every  such  suit  or  action 
may  be  proceeded  on  by  application  of  the  heirs,  executors  or 
administrators  of  either  party. 

2.  Where  a  term  of  the  superior  court  of  law,  or  the  court  of  Nor  where  a 
equity,  or  a  session  of  the  court  of  pleas  and  quarter  sessions,  be'tweTnThe"^^ 
shall  intervene  between  the  death  of  any  plaintiff  or  defendant,  and  death  of  a  par- 
qualification  of  the  executors  or  administrators  of  such  deceased  J,a^i"ficatfon  of 
plaintiff  or  defendant,  the  intervention  of  such  term  or  session  his  executor  or 
shall  not  work  any  abatement  or  discontinuance  of  such  suit.  administrator. 


1.  1736,  c.  253,  s.  1. 

2.  1~S9,  c.  314,  s-  6. 


56  ABATEMENT.  [ChAP.    II. 

Nor  while  a  3.  Whenever  any  plaintiff  or   defendant  in  any  suit  shall  die, 

^i^'for  admin^'^'^^  there  shall  be  any  contest  for  the  administration  on  the  estate 
isiration  or  for  of  the  deceased,  or  for  the  probate  of  any  last  will  and  testament 
probate  of  a      ^^  ^^^^^  deceased  person,  such  suit  shall  be  continued  from  term 
to  term  until  said  contest  is  determined,  and  until  after  the  expira- 
tion of  one  term  after  such  determination,  when  the  same  may  be 
abated  by  plea. 
Nor  by  the  4.   No  suit  in  any  court  of  law  or  equity,  brought  or  prosecuted, 

marriage  of  the  shall  abate  on  account  of  the  plaintiff's  marriage,  and  it  shall  be 
^  ^^"^    '  lawful  for  the  husband  of  any  woman  having  a  suit  depending,  to 

make  himself  a  party  thereto,  on  motion  at  the  next  or  succeeding 
term  after  his  marriage,  and  the  suit  shall  afterwards  be  carried  on 
as   if  he  and    his   wife  had   been  originally  plaintiffs.      Provided 
partv  to  eive    aZioa?/s,  whcn  application  is  made  by  any  person  who  has  married 
new  security     a  feme  sole  plaintiff,  to  be  plaintiff  in  the  prosecution  of  any  suit 
for  the  costs.    hj-Qught  by  his  wife  before  marriage,  it  shall  be  the  duty  of  the 
clerk  of  said  court  to  take  bond  and  security  for  the  payment  of 
the  costs  in  like  manner  and  form  as  is  usual  in  other  cases  ;  and  in 
case  of  failure  to   prosecute  with  effect,  the  said  husband  and  his 
securities  shall  be  held  and  deemed  liable  for  the  payment  of  costs 
in  the  same  manner  as  other  plaintiffs  who  have  failed  to  prosecute, 
and  shall  be   subject  to  the  same  writs  of  execution,  and,   upon 
said  bond  being   executed,   the  security  originally  given  for  the 
prosecution   of  the    suit  shall    be    discharged   from   any  liability 
thereon. 
Nor  by  the  5.   Whenever  a  feme  sole  defendant  shall  marry  pending  the 

marriage  of  a   g^^jt    j^gj.  husband  may  he  made  party  defendant,  if  the  plaintiff 

fCTJflC  sole  Q-G-  J  ^  L  J  -^  _    1 

■fendant.  shall  SO  choose,  and  the  suit  afterwards  shall  proceed  against  such 

feme  and  her  husband. 
Nor  by  the  6.  No    suit  to   which  an   executor  or  administrator  is    party, 

death  of  an  ex- plaintiff  or  defendant,  shall  abate  by  the  death  of  such  executor  or 

Gcutor  or  3.0.-  •    •  . 

ministrator,       administrator,   but   the   same  may  be  revived  by  or  against  the 
plaintiff  or  de-  administrator  de  bonis  non,  or  the  executor  of  the  executor  of  such 
deceased  party,  as  the  same  may  be  revived  by  the  existing  law 
by  or  against  an  executor  upon  the  death  of  his  testator,  plaintiff, 
or  defendant. 
Action  of  7.  No  action   of  ejectment  shall  abate  by  the  death  of  any  de- 

tlT'^de'^h^'of'^  fendant  in  said  action,  but  the  same  may  be  revived  by  serving  on 
the  defendant,  the  lieirs  at  law,  or  devisees  of  said  defendant,  or  the  guardian, 
a^  aL^t  Mr^^*^  within  two  terms  after  his  decease,  a  copy  of  the  declaration  filed 
heirs  or  devi-  in  said  action,  together  with  a  notice  to  the  heirs  or  devisees,  or 
sees.  thgjj.   guardian  if  they  be  minors,  to  appeal'  and  defend  said  suit, 

and  after  such   service  the  suit  shall  stand  revived,  and   shall   be 
proceeded  on  in  the  same  manner  as  if  the  defendant  were  hving. 
Court  may  ap-       8.  Whenever  any  of  the  heirs  at  law,  or  devisees  of  such  de- 
point  guardians  fendant,  to  whom  the  land  in  dispute  shall  descend  or  be  devised, 

for  infant  de-  '■ 

fendants  in 

ejectment.  3.   1799,  c.  532,  s.  4. 

4.  1793,  c.  505,  s.  1  and  2. 

5.  Amendment. 

6.  1824,  c.  1247. 

7.  1799,  c.  532,  s.  1. 

8.  1799,  c.  532J  s.  2. 


Chap.  IL]  abatement.  57 

shall  be  minors  without  guardian,  the  court  wherein  the  said  suit 
is  pending,  shall  be  authorized  and  empowered,  upon  application, 
to  appoint  a  guardian  or  guardians  to  defend  said  suit  in  behalf  of 
said  minor  or  minors,  who  shall  be  next  of  kin  to  him  or  them,  or 
such  other  person  or  persons  as  the  court  shall  approve. 

9.  Whenever  any  of  the  heirs  or  devisees,  or   their,  or  either  How  service  to 
of  their  guardians,  shall  reside  out  of  the   State,  the  sheriff  of  the  ^j^^^'ljgjl.g  ^^^ 
county  to  whom  the  declaration  and  notice  shall  issue,  shall  upon  devisees  are  out 
making  his  return  state  the  fact,  and  an  ahas  declaration  and  notice  *^" 
shall  issue,  and  an   advertisement  of  such  notice  shall  be  made  in 

some  public  gazette  of  this  State,  and  such  as  the  court  shall  pre- 
scribe, for  the  space  of  three  months  :  and  if  the  same  return  shall 
be  made  after  such  advertisement  as  aforesaid,  the  suit  may  be 
prosecuted  in  such  manner  and  to  the  same  effect,  as  if  such  dec- 
laration and  notice  had  been  served. 

10.  No  action  of  detinue,  or  trover,  or  action  of  trespass  vi  et^*^^^""^^  °^^^*' 

'  '  i  inue  or  trover 

armis,  or  trespass  on  the  case,  where  property,  either  real  or  per- or  for  injuries 
sonal,  is  in  contest,  or  brought  to  recover  damages  done  to  prop-  so^afp^J  ^"' 
erty,  real  or  personal,  and  which  is  not  merely  vindictive,  shall,  in  not  to  abate  by 
any  cause  or  court,  abate  or  be  discontinued  by  the  death  of  either  g^'^^g^^p^"^ 
party,  plaintiff  or  defendant,  but  the  same  shall  and  may  be  revived 
in  the  manner  prescribed  for  the  revival  of  other  actions. 

11.  No  appeal,  in  any  cause  or  court  whatever,  shall  be  abated  Appeals  not  to 
by  the  death  of  either  plaintiff  or  defendant,  but  may  be  proceeded  death  o^  eMer 
on  by  application  of  the  heirs,  executors  or  administrators  of  either  party. 

party.  ,  V        _y- 

9.  1799,  c.  532,  s.  3.  /  fc     ex  O  Cl  L£, 

10.  1799,  c.  532,  s.  5.     1805,  c.  679,  s.  I. 

11.  1785.  c.  233,  s.  2. 


Note. — References  to  Adjudged  Cases. 

Sect.  1.  Hamilton  vs.  Jones,  1  Murph.  411.  Smith  vs.  Walker,  2  Car.  Repos. 
244. 

Sect.  4.  Gerard  vs.  Pierce,  1  Murph.  161. 

Sect.  7.  Ray  vs.  Simpson,  2  Car.  Repos.  249. 

Sect.  10.  Estis  vs.  Lenox,  Conf.  72.  McAlester  vs.  Spillar,  ib.  95.  Arnold  vs. 
Lanier,  I  Car.  Repos.  529.  Fellows  vs.  Fulgham,  3  Murph.  254.  Brown  vs.  Blick, 
3  Murph.  511.     McClure  vs.  Miller,  4  Hawks,  133. 


VOL.    I.  8 


68 


AMENDMENT. 


[Chap.  III. 


CHAPTER  3. 


AMENDMENT. 


AN  ACT  CONCERNING  THE  AMENDMENT  OF  PROCESS,  PLEADINGS, 
AND  OTHER  PROCEEDINGS  AT  LAW. 


Section 


General  power  of  courts  to  amend 
before  judgment. 

Adverse  party  to  answer  amendments 
in  substance. 

Formal  defects  may  be  amended  af- 
ter judgment. 

Returns  by  ofRcers,  &c.,  may  be 
amended  in  matters  of  form. 

Certain  defects  to  be  disregarded 
after  verdict. 


Section 

6.  Such    defects    to  be   supplied   and 

amended. 

7.  Amendments  not  to  be  made  without 

an  order  of  court. 

8.  Formal  defects  to  be  disregarded  on 

general  demurrer. 

9.  Such  defects  to  be  amended. 

10.  The  provisions  of  this  act  shall  ex- 
tend to  all  actions  and  proceedings 
in  any  court  of  law. 


General  power 
of  courts  to 
amend  before 
judgment. 


1.   Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  the  court  in   which  any  action  shall  be   pending,  shall  have 
power  to  amend  any  process,  pleading  or  proceeding  in  such  ac- 
tion, either  in  form  or  substance,  for  the  furtherance  of  justice  on 
such  terms  as  shall  be  just,  at  any  time  before  judgment  rendered 
thereon. 
Adverse  party       2.   If  such  amendment  be  made   to  any  pleading  in  matter  of 
to  answer         substance,  the  adverse  party  shall  be  allowed  an  opportunity,  ac- 
substance.        cording  to  the  course  and  practice  of  the   court,   to  answer  the 

pleading  so  amended. 
Formal  defects      3.   After  judgment  rendered  in  any  cause,  any  defects  or  imper- 
may  be  aniend-  fections  in  matter  of  form,  contained  in  the  record,  pleadings,  pro- 
ment.  cess,  entries,  returns,  or  other  proceedings  in  such  case,  may  be 

rectified  and  amended  by  the  court  in  affirmance  of  the  judgment, 
so  that  said  judgment  shall  not  be  reversed  or  annulled,  and  any  vari- 
ance in  the  record  from  any  process,   pleading  or  proceeding  had 
in  such  court,  shall  be  reformed  and  amended  according  to  such 
original  process,  pleading  or  proceeding. 
Returns  by  of-       4.   All  returns  made  by  any  sheriff  or  other  officer,  or  any  court, 
fleers  &c.  may  or  Subordinate  tribunal,  to  any  court,  may  be  amended  in  matter 
mauTrTof'^  ^^  o^  ^OYm,  by  the  court  to    which    such  returns   shall  be  made,  in 
form.  their  discretion,  as  well  before  as  after  judgment. 


Certain  defects 
to  be  dis  re- 
garded after 
verdict. 


5.  When  a  verdict  shall  have  been  rendered  in  any  cause,  the 
judgment  thereon  shall  not  be  stayed,  nor  shall  the  judgment  upon 
such  verdict,  or  any  judgment  upon  confession,  default,  nihil  dicit, 
or  non  sum  informatus,  be  reversed,  impaired,  or  in  any  way 
affected  by  reason  of  the  following  imperfections,  defects,  matters, 


Chap.  III.]  amendment.  59 

or  things,  or  any  of  them  in  the  pleadings,  process,  proceedings 
or  record,  namely  :  for  want  of  any  writ,  original  or  judicial  ;  for 
any  default  or  defect  in  process,  or  for  misconceiving  any  process, 
or  awarding  the  same  to  a  wrong  officer,  or  for  the  want  of  any 
suggestion  for  awarding  process,  or  for  any  insufficient  suggestion  ; 
for  any  imperfect  or  insufficient  return  of  any  sheriff  or  other  offi- 
cer ;  or  that  the  name  of  such  officer  is  not  set  to  any  return  ac- 
tually made  by  him  ;  for  any  variance  between  the  original  writ, 
bill,  plaint  and  declaration,  or  between  either  of  them  ;  for  any 
mispleading,  miscontinuance  or  discontinuance,  insufficient  plead- 
ing, or  jeofail,  or  misjoining  of  issue  ;  for  the  want  of  any  warrant 
of  attorney  by  either  party  ;  for  any  party  under  twentyone  years 
of  age  having  appeared  by  attorney,  if  the  verdict  or  judgment  be 
for  him  ;  for  the  want  of  any  allegation  or  averment,  on  account 
of  which  omission,  a  special  demurrer  could  have  been  maintain- 
ed ;  for  omitting  any  allegation  or  averment  of  any  matter,  with- 
out proving  which,  the  jury  ought  not  to  have  given  such  ver- 
dict ;  for  any  mistake  in  the  name  of  any  party  or  person,  or  in 
any  sum  of  money,  or  in  the  description  of  any  property,  or  in 
the  reciting  or  stating  any  day,  month  or  year,  when  the  correct 
name,  time,  sum  or  description,  shall  have  been  once  rightly  al- 
leged in  any  of  the  pleadings  or  proceedings  ;  for  a  mistake  in  the 
name  of  any  juror  or  officer  ;  for  any  informality  in  entering  a 
judgment,  or  making  up  the  record  thereof,  or  in  any  continuance 
or  other  entry  upon  such  record  ;  for  any  other  default  or  negli- 
gence of  any  clerk,  or  officer  of  the  court,  or  of  the  parties,  or 
their  counsellors  or  attorneys,  by  which  neither  party  shall  have 
been  prejudiced. 

6.  The  omissions,  imperfections,  defects   and  variances,  in  the  ?"'^^ '^'^('^^'^^  ^*? 

,.  .  ^  ,  1      11        1  I'     1       1-1  be  supplied  and 

precedmg  section  enumerated,  and  all  others  oi  the  like  nature,  amended, 
not  being  against  the  right  and  justice  of  the  matter  of  the  suit,  and 
not  altering  the  issue  between  the  parties  or  the  trial,  shall  be 
supplied  and  amended  by  the  court,  where  the  judgment  shall  be 
given ;  or  by  the  court,  into  which  such  judgment  shall  be  re- 
moved by  writ  of  error  or  appeal. 

7.  No   process,   pleadine  or  record,  shall  be  amended  or  im- '^'^^'^'J'"^•l*^ 

,  ,       ^,         ,     1     ^  ,    '-'      ^  /.  1  ,        not  to  be  made 

paired  by  the  clerk  or  other  officer  oi  any  court,  or  by  any  other  without  an  or- 
person,  without  the  order  of  such  court,  or  some  other  court  of'^^'^"^  c""""^- 
competent  authority. 

8.  When  any  demurrer  shall  be  entered  in  any  action,  and  issue  ^•^J"'"?^? '^^^^'=*? 
be  joined   thereon,    the   court  shall  proceed   and  give  judgment  ed  on  general 
according  as  the  very  right  of  the  cause  and  matter  in  law  shall  ciemurrer. 
appear,  without  regarding  any  defect  or  other  imperfection  in  any 

process  or  pleading,  so  as  sufficient  matter  appear  in  the  pleadings 
to  enable  the  court  to  give  judgment  according  to  the  very  right  of 
the  cause,  unless  such  defect  or  other  imperfection  be  specially 
expressed  in  the  demurrer. 

9.  After  issue  shall  be  joined  on  any  demurrer,  the  court  shall  g^^j^  jgj.g^,jg  ^^ 
amend  every  such  defect  or  other  imperfection  in  any  process  or  be  amended, 
pleading  in  the  last  section  mentioned,  other  than  those  which  the 

party  demurring  shall  specially  express  in  his  demurrer. 


60 


APPEALS. 


[Chap.  IV. 


The  provisions  10.  The  provisions  of  this  act  shall  extend  to  all  the  courts  of 
shaii^ex^end  to  ^^^^  State,  from  the  supreme  court  down  to  the  lower  tribunals, 
all  actions  and  and  to  all  actions  in  the  said  courts  of  law,  and  to  all  suits  for  the 
any^court  oV"^  recovery  of  any  debt  due  to  this  State,  or  for  any  debt,  duty,  or 
law.  revenue,  belonging  to  said  State,  and  also  to  all  actions  for  penal- 

ties and  forfeitures,  to  all  writs  of  mandamus  and  prohibition,  to 
all  informations  in  the  nature  of  a  quo  warranto,  to  writs  of  scire 
facias,  and  to  the  proceedings  thereon,  to  all  writs  of  error, 
appeals  and  proceedings  in  the  nature  of  appeals. 

Note. — See  the  English  statutes  of  14  Edwd.  3d.  c.  6 ;  9  Hen.  5th,  c.  4 ;  4  Hen.  6th, 
c.  3 ;  8  Hen.  6th,  c.   12  and  15  ;  32  Hen.   8th,  c.  30 ;  18  Eliz.  c.  14 ;  27  Eliz.  c.  5  ;  21 
Jac.    1st.  c.  13;  16  and  17  Car.  2d,  c.  8  ;  4  and  5  Anne,  c.    16  ;  5  Geo.  1st.   c.  13; 
~-  all  which  are  declared  to  be  in  force  in  this  State,  by  the  act  of  1777,  c.    115,  sec.  35  ; 

see  also  the  act  of  1786,  c.  253,  sec.  3;  1790,  c.  318,  sec.  2;  1794,  c.  414,  sec.  16; 
1824,  c.  1233. 


Note.  — References  to  Adjudged  Cases, 

Cowper -ps.  Edwards,  1  Hayw.  19.  Troxlev  vs.  Gibson,  ib.  465.  Paircloth  rs.  In- 
gram, ib.  501.  Singleton  vs.  Kenedy,  Conf.  Rep.  520.  Dudley  vs.  Carmolt,  1  Murph. 
339.  Tear  vs.  White,  ib.  412.  Davis  vs.  Evans,  2  Murph.  202.  McLean  vs.  Benton, 
1  Car.  Repos.  472.  Williams  vs.  Leishire,  No.  Ca.  Term.  R.  146.  Justices  vs.  Saw- 
yer, 2  Hawks  61,  UiTord  fs.  Lucas,  ib.  214.  Matlock  t)s.  Gray,  4  Hawks  1 .  Wilson «s. 
Myers,  ib.  73.  Stamps  vs.  Graves,  ib.  102.  Worthingtonns.  Arnold,  2  Dev.  363.  State 
vs.  Cherry,  ib.  550.     Grist  vs.  Hodges,  3  Dev.  198.     West  vs.  Rutledge,  4  Dev.  31. 


CHAPTER  4- 

APPEAL.S,  ANB  PROCEEDINGS  IN 
THE  NATURE  OF  APPEALS. 


AN  ACT  CONCERNING  APPEALS  AND  PROCEEDINGS  IN  THE  NATURE 

OF  APPEALS. 


Section 

1.  Appeal  allowed  from  any  sentence, 

judgment,  or  decree  of  the  county 
to  the  superior  court,  upon  the  par- 
ty's giving  security. 

2.  Appeals  allowed  from  orders  of  the 

county  court,  appointing  or  remov- 
ing a  guardian — On  the  probate  of 
wills  or  granting  letters  of  adminis- 
tration— On  the  trial  of  caveats — 
In  cases  of  petition  for  damages 
caused  by  the  erection  of  public 
mills — In  cases  of  petition  for  lay- 
ing out  roads  or  settling  ferries. 

3.  Duty  of  the  clerk  of  the  county  court 

to  file  a  transcript  in  the  superior 


Section 

court— Appeal  to  stand  for  trial  at 
first  term. 

4.  Appellant  may  procure  a  transcript 

and  file  it  in  the  superior  court. 

5.  How  appellant   may  proceed  when 

there  is  a  vacancy  in  the  office  of 
the  superior  court  clerk. 

6.  When   the   appellant  fails  to  file  a 

transcript  in  the  superior  court,  the 
appellee  may  proceed  and  have  the 
judgment  affirmed  with  double  costs 
to  be  paid  by  the  appellant. 

7.  In  cases  of  appeal,  the  clerk  of  the 

county  court  may  issue  subpoenas 
for  witnesses. 


Chap.  IV.] 


APPEALS. 


61 


Section 

8.  Defendant  in  actions  of  debt,  cove- 

nant or  assumpsit,  appealing,  for  de- 
lay, to  pay  additional  interest. 

9.  Plaintiff  appealing  and  not  recover- 

ing a  greater  sum  in  the  superior 
court,  to  have  no  costs,  but  may  be 
ordered  to  pay  the  same. 

10.  Bonds   for  appeal  and  for  prosecut- 

ing the  suit,  to  be  sent  up  as  a  part 
of  the  record,  and  judgment  maybe 
entered  upon  them. 

1 1 .  Appeal  not  to  be  dismissed  for  want 

of  form. 

12.  Clerk  of  the  superior  court   shall,  if 

required,  give  a  receipt  for  the  trans- 
cript— Cause  to  be  placed  on  the 
trial  docket  when. 

13.  Clerk  of  superior  court  to  issue  sub- 

poenas after  the  transcript  is  filed. 

Penalty  on  clerks  for  failing  to  per- 
form their  duty  in  regard  to  ap- 
peals. 

Persons  obtaining  writs  of  recorda- 
ri,  or  false  judgment,  to  give  securi- 
ty as  in  cases  of  appeals. 
16.  Clerk  of  the  county  court  to  take 
security  from  persons  obtaining  cer- 
tioraris. 


14. 


15. 


Section 

17.  Superior  courts  may  grant  writs  of 

error — Proceedings    upon  them. 

18.  Time  within   which  writs   of  error 

must  be  brought. 

19.  Proviso  for  persons  under  disabili- 

ties. 

20.  Time  within  which  writs  of  error  for 

matters  of  fact  must  be  brought. 

21.  Appeals  from  the  superior  courts  to 

the  supreme  court  allowed. 

22.  Supreme  court  to    render  judgment 

upon  an  inspection  of  the  whole  re- 
cord. 

23.  Judges  of  the  superior  courts  may  al- 

low appeals  from  interlocutory  judg- 
ments. 

24.  The  whole  cause  not  to  be  removed  to 

supreme  court  by  the  allowance  of 
such  appeal. 

25.  In  appeals  to  the  supreme  court,  the 

appellant  must  file  a  transcript  with- 
in the  first  seven  days  of  the  term. 

26.  How  the  appellee  may  proceed,  when 

the  appellant  fails  to  file  the  trans- 
cript within  proper  time. 

27.  How  judgment  for  costs  be  rendered. 

28.  Appeals  to  the  supreme  court  allow- 

ed in  equity  causes. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina,  and  it  is  hereby  enacted   by  the   authority  of  the  same, 

That  when  any  person,  either  plaintiff  or   defendant,  or  who  shall  Appeal  allowed 

1       1     11  1        V         •   /-     1       -1       1  •     1  from  any  sen- 

be  interested,  shall  be  dissatisned  with  the  sentence,  judgment  or  tence,  judg- 

decree  of  any  county  court,  he   may  pray   an   appeal  from  such  "J.^"'i  "'^  decree 

sentence,  judgment  or  decree,  to  the  superior  court  of  law  of  the  to  the  superior 

county  wherein  such  county  court  shall  be,  but  before  obtaining  ^°"5^  "P?"  *^ 

^  •  1         1  1  1  party's  giving 

the  same,  shall  enter  into  bond,  or  cause  the  same  to  be  entered  security,  &c. 
into  with  two  sufficient  securities  for  prosecuting  the   same  with 
effect,    and   for  performing  the  judgment,  sentence   and  decree, 
which  the  superior  court  shall  pass  or  make  therein,  in  case  such 
appellant  shall  have  the  case  decided  against  him. 

2.  Appeals  shall  likewise  be   granted,  upon  the    same  terms  as 
prescribed  in  the  preceeding  section,  in  the  following  cases. 

1st.   When   any  person   shall   consider   himself  injured  or  ag- Appeals  allow- 

11  1  ^  r^i  ^  i-  -x'  ed  from  orders 

grieved,  by  order  or  sentence  oi  the  county  court,  in  appointing  a  ^f  jj^g  county 
guardian  to  any  orphan,  or  in   removing  any  orphan  from  the  care  court,  appoint- 

1  ^    •  ,•  c  111  -Ij  1  inarorremov- 

and  tuition  ot  any  person  who  has  been  appointed  such,  or  on  re- j^^^  j^  g^^rdiaa. 
fusing  to  make  such  appointment  or  removal  as  aforesaid. 

2d.   When  any  person,  who  shall  claim  a  right  to   execute  any    o]-°atrof  wills 
will,  or  to  administer  to    the   estate   of   any  intestate,   shall   think  or  granting  let- 
himself   injured  by  order  of  court  for  letters  testamentary,  or  of -sJ^ation.  '^'^" 
administration. 


1.  1777,  C.  115.  s.  75. 

2.  1762,  c.  69.  s.  24.— 1777,  C.  115.  s.  58.— 1807,  C.  720.— 1809,  c.  773.  s.  4. 
862,  s.  2. 


-1813,  c. 


62  APPEALS.  [Chap.  IV. 

Also  on  the  tri-  3d.  In  trials  of  caveats  of  land,  and  suspensions  of  grants  of 
a  s  o  caveats,  i^j^^^  where  either  party  is  dissatisfied  with  the  verdict  of  the  jury. 
Also  in  casesof  4th.  Where  either  is  dissatisfied  with  the  judgment  of  the  court, 
mages^causedT "  upon  the  verdict  of  the  jury  rendered  upon  the  petition  of  any  per- 
by  the  erection  son  alledging  that  he  is  injured  by  the  erection  of  a  public  mill. 
,,^  .  ^*^    ^  ^'      5th.   Where  any  person  is   dissatisfied  with  the  iudsfment,  sen- 

Also  in  CRSGS  01  •/     1  */         o  ' 

petition  for  tence  or  decree,  which  the  court  may  pass  or  pronounce  on  any 
laying  out  petition  filed  for  appointing  or  settling  a  ferry,  laying  out  any  pub- 
tling  ferries,     lic  roads,  or  discontinuing,  or  altering  such  roads  as  are  now,  or 

shall  hereafter  be  made. 
Duty  of  the  3.  Whenever  any  appeal  shall  be  granted  from  the  county  court 

clerk  of  the      of  pleas  and  quarter  sessions,  to  the  superior  court  of  law,  it  shall 

ccuntv  court  to        ■*  -*■  -* 

file  a  transcript  be  the  duty  of  the  clerk  of  the  county  court  aforesaid,  to  file  a 
in  the  superior  ^j.j^jjggj.jp^.  q^  ^]^q  record  of  the  suit   on  which  the  appeal  shall  be 

Appeal  to         granted,  on,  or  before  the  first  day  of  the  term  of  the  next  supe- 
stand  for  trial   j.Jq^  court,  after  the  same  shall  be  granted  or  allowed,  if  there  shall 
be  ten  days  between  the  last  day  of  the  term  of  the  said  county 
court,  and  the  next  term  of  the  said  superior  court,  and  the  said 
appeal  shall  stand  for  trial  at  the   said  next  term   of  the  superior 
court,  and  if  it  shall  so  happen  that  there  shall  be  less  than   ten 
days,  then  the  said  appeal  shall  be  continued,  and   it  shall  be  the 
duty   of  the  clerk  aforesaid  to   file  the  transcript   of  the  record 
aforesaid,  on    or  before  the  first  day  of  the  second  term  of  the 
superior  court  next  after  the  appeal  granted. 
Appellant  may      4.  Nothing  in  the  preceding  section  shall  prevent  the  appellant 
procure  a  trans- fj.Qj-fj  applying  to  the  clerk  of  the  county  court  for  a  transcript  of 
in  the  superior  the  record,  whose  duty  it  shall  be,  immediately  after   an  appeal 
court.  ghgii  ]-,Q  granted,  to  make  up  a  full  and  perfect  record  of  all  the 

proceedings  in  the  cause  :  and  within  ten  days  after  the  final  ad- 
journment of  the  term,  in  which  the  cause  shall  be  heard,  give  an 
attested  copy  of  such  record,  with  the  taxation   of  all  costs  ac- 
crued, to  said  appellant,  if  required  ;  and  shall  endorse   on  such 
copy  the  day  or  days  on  which  the  same  may  have  been  demand- 
ed, and  the  day  on  which  it  shall  be  delivered,  and  sign  his  name 
as  clerk  thereto  ;  and  the  said  appellant  shall  file  the  same  on    or 
before  the  first  day  of  the  term  of  the  next  superior  court,  under 
the  like  restrictions  and  provisions  as  in  the  preceding  section. 
How  appellant      5.  Whenever  any  appeal  shall  be  had  from  the  county  court  to 
when^there  is  a  ^^^  Superior  court  of  law,  and  a  vacancy  shall  have  happened  in  the 
vacancy  in  the  office  of  clerk  of  Said  Superior  court,  so  that  the  appellant  cannot 
perior°court  ^^' fi-'®  ^^®  transcript  of  the  record  within  the  time  prescribed  by  law, 
clerk.  on  the  appellant's  making  it  appear  to  the  satisfaction  of  the  court 

to  which  the  said  appeal  shall  be  returnable,  that  he  had  made  ap- 
plication to  the  clerk  of  the  county  court  for  a  transcript  of  the 
record,  within  time  to  have  filed  the  same  within  ten  days  before 
the  sitting  of  the  said  superior  court,  the  transcript  of  the  record 
shall  be  filed  in  the  said  court,  and  the  cause  shall  stand  for  trial 
at  the  succeeding  term. 

3.  1821,  c.  1117,  s.  1. 

4.  1821,  c.  1117,  s.  5. 

5.  1S16,  c.  903j  S.  3. 


Chap.  IV.]  appeals.  63 

6.  When  the  appellant  receives  from  the  clerk  the  transcript  in  When  the  ap- 
appeal  and  refuses  or  neglects  to   file  the   same   in  the  superior  I^Je  a  uanscrLt 
court  on  or  before  the  first  day  of  the  term  as  required  by  law,  or  in  the  superior 
shall  fail  to  appear  and  prosecute  his   appeal,  the  appellee  shall  be  pg^/^^  *^J^P^^_ 
entitled  to  demand  from  the  clerk  a  copy  of  the  record,  and,  on  ceed  and  have 
motion  in  the  superior  court,  the  judgment  of  the  court  below  shall  affirmedwTth 
be  affirmed  with  double  costs,  to  be  paid  by  the  appellant.  double  costs  to 

7.  The  clerks  of  the  county  courts   shall  have  full  power  and  I^ppPJ^j^^j^J  ^^'° 
authority  to   issue  writs  of  subpoena  to  summon  witnesses  in  all  i^  cases  of  ap- 
cases  of  appeals,  returnable  to  the  same  term  of  the  superior  court  peal  the  clerks 
of  law  to  which  such  appeals  shall  be  allowed.  courts rnay issue 

8.  When  any  defendant  in  any  action  of  debt,    covenant,  or  subpfenas  for 
assumpsit  shall  appeal  from  the  judgment  of  any  court  of  pleas  and^^^^^^  "  .^ 
quarter  sessions  to  a  superior  court,  and   shall  not  upon  the  trial  of  actions  of  debt, 
such  appeal   diminish  the  sum  recovered  by  the    plaintiff  in   the  covenant  or  as- 

^i,  ,  .  •iiii^iif-ir-      sumpsit,  ap- 

court  of  pleas  and  quarter  sessions,  it  shall  and  may  be  Jawtul  tor  pealing  for  de- 
the  said  superior  court,  if  it  appear  that  the  appeal  was  taken  for  l^-^°  ^^^ter-' 
the  purpose  of  delay,  to  give  judgment  in  behalf  of  the  plaintiff,  est. 
not  only  for  the  amount  of  the  verdict  rendered  in  said  court,  but 
also  for  a  sum  in  addition   thereto  not  exceeding  four  per  centum 
per  annum  on  the  principal  sum  recovered,  from  the  time  of  judg- 
ment in  the  inferior  court  to  the   time  of  entering  up  the  same  in 
the  superior  court,  which  additional  sum  shall  be  considered  as  a 
penalty,  and   shall  not   draw  interest   in  cases   where  interest  is 
allowed  on  judgments. 

9.  When  any  plaintiff  shall  appeal  from  the  judgment  of  any  plaintiff  appeal- 
court  of  pleas  and  quarter  sessions  to  a  superior  court,  and  shalP"^  ^"^  "°'' "^^^ 

r       .  -l  .  r  '  covering  a 

not  recover  m  said  superior   court  a  greater  sum  than  that  recov-  greater  sum  in 
ered  in  the  court  of  pleas  and  quarter  sessions,  independently  of '^®  ^"P^'jl"'' 
the  interest  accrued   since  the  former  judgment,  he  shall  not  re- no  costs,  but 
cover  the  costs  of  the  appeal,  but  shall  be  liable  at  the  discretion  ^'tJav  the'^^^'^'^ 
of  the  superior  court  to  pay  the  same.  same. 

10.  The  bonds  taken  for  the  prosecution  of  the  appeal  with  Bonds  for  ap- 
effect  shall  make  part  of  the  record  sent  up  to  the  superior  court,  prosecuting^the 
on  which  judgment  may  be  instanter  entered  up  against  the  appel-  suit  to  be  sent 
lant  and  his  securities  in  all   cases  where  judgment  shall  be  ren-  t^^g Record  °and 
dered  against  the   appellant,   and  in   all  cases  of  appeal  from  the  judgment  may 
county  to  the  superior  court,  the  bond   given   for  prosecuting  the  them!'^'^^  "^"^^ 
suit  shall  also  be  made  a  part  of  the  record  and  transmitted  to  the 

superior  court. 

11.  No  appeal  shall  be  dismissed  for  want  of  form,  if  the  judge  Appeal  not  to 
of  the  superior  court  shall  be  of  opinion  that  there  appears  to  be  ^.^  dismissed 

A  1  r  L  lor  want  ot 

sufficient  matter  of  substance  in   the  transcript  of  the  record  and  form, 
proceedings,  to  enable  him  to  proceed  thereon. 

12.  The  clerks  of  the  superior  courts  respectively,  upon  receiv-  Clerk  of  the 

•    .       r    ,1  J  1  ■'i-  .•'        ^  .  superior  court 

ing   a  transcript  ot   tlie  record  and   proceedings   in  any  suit,   on  shall,  if  requir- 
ed, give  a  re- 

6.  1777,  c.  115,  s.  77.  ceipt  for  the 

7.  1821,  c.  1117,  s.  2.  transcript. 
S.  1807,  c.  713,  s.  1. 

9.  1S07,  c.  713,  s.  2.  — 1801,  c.  574,  s.  4. 

10.  1785,  c.  233,  s.  2.— 1831,  c.  46,  s.  2. 

11.  1777,  c.  115,  S.  81. 

12.  1777,  c.  115,  s.  82.— 1821,  c.  1117,  S.  1. 


64  APPEALS.  [Chap.  IV. 

which  an  appeal  shall  be  had,  whether  such  transcript  shall  be 
brought  up   by   the  clerk  of  the   county  court  or  the  party  ap- 
pellant himself,  shall  if  required  give  a  receipt  for  the  same,   and 
immediately  endorse  thereon  the  day  on  which  it  shall  be  dehver- 
ed,  and   if  there   shall  be   ten  days  between  the  last  day  of  the 
Cause  to  be      county  court  in  which  the  appeal  was  granted,  and  the  first  day  of 
f^'^^rd  T' \^^    the  next  term  of  the   superior  courts,  he   shall  enter  it  upon  the 
when.  docket  of  causes  for  trial,  and  if  there   be  less  than  ten  days  be- 

tween the  courts  aforesaid,  then  he  shall  enter  the  cause  upon  the 
docket  for  the  trial  of  causes  for  the  ensuing  term. 
Clerk  of  the  13.    The  clerks  of  the  superior  courts  respectively,   upon  the 

superior  court  to  ^Ijj^g.  gf  (jjg  transcript  of  the  records  and  proceedings  upon  an  ap- 

issue  subpoenas  p  r  i     n      -r  •       i      •  i  r 

after  the  trans- peal  granted  to  then*  court,  shall,  it  required,  issue  subpoenas  tor 
cript  is  filed,     witnesses  to  attend  at  the  same   term,  when  the  cause  shall  stand 

for  trial. 
Penalty  on  14.   If  any  clerk  either  of  the  superior  or  county  court  shall  fail 

in^'^toperfo™  *°  perform  any  of  the  duties  prescribed  to  them  in  any  of  the  sec- 
theirduty  inre-tions  of  this  act,  he  shall  pay  a  fine  of  forty  dollars  to  the  party 
gar  to  appea  s.  appg^Jing,  and  shall  further  be  liable   to  an  action  on  the  case  on 

behalf  of  any  person  injured  by  his  neglect  of  duty. 
Persons  obtain-      ^^'  ^^^^n  any  person  shall  obtain   a  writ  of  recordari  facias 
ing  writs  of  re-  loquelam,  or  writ  of  false  judgment,  to  remove  any  proceedings 
falseTud°ment  which  shall  be  had   before   a  magistrate,   to  any  of  the  superior 
to  give  security  courts  of  this  State,  the  person  so  applying,  if  the  defendant  below, 
appeals^*^^       ^^^^^^  be  required  to  give  bond  with  good  and  sufficient  security  for 
the  payment  of  judgment  and  costs,  which  may  be  recovered  against 
such  person  in  the  superior  court  ;  which  bond  shall  be  transmit- 
ted by  the  said  magistrate  with  the   writ   and  other  papers  to  the 
court  to   which  they  are  returnable,   and  the   magistrate,   before 
whom  the  cause  was  tried,   is   hereby  authorized  and  required  to 
take  such  security  in  the  same  manner  as  security  is  taken  on  ap- 
peals to  the  county  court. 
Clerk  of  county      16.   In  all  cases  where  writs  of  certiorari  are  directed  to  the 
security  from    ^ouiity  court,  the  clei'k  of  the  court  is   hereby  required  to  take 
persons  obtain-  Security  in  the  same  manner   and  under  the  same  regulations  that 
mg  certiorans.  gegm-j^y  jg   taken    on  appeals  from  the   county   to   the   superior 

courts. 
Superior  courts      1^-   The  superior  courts  shall  have  power  and  authority  to  grant 
may  grant  writs  writs  of  crror  for   Correcting  the  errors  of  any  inferior  court,  and 
Pro^c?edings      ^^^  party  praying  such  writ,  before  the  same  shall  issue,  shall  assign 
upon  them.       error  and  give  bond  and  security  to  the  satisfaction  of  the   court 
to  abide  by,  perform  and  fulfil  the  judgment  which  shall  be  given 
therein  by  such  court  ;  and  if  upon  argument  of  any  writ  of  error 
or  trial  of  any  appeal  from  any  inferior  court,  the  judgment  or  de- 
cree of  the  inferior  court  shall  be  reversed,  the  superior  court  shall 
grant  judgment  or  make   such   decree  thereupon  as  should  have 
been  made  up  or  entered  in  such  inferior  court,    and  shall   and 

13.  1777,  c.  11.5,  s.  82. 

14.  1821,  c.  1117,  s.  3. 

15.  1610,  c.  793,  s.  1. 

16.  ISIO,  c.  793,  s.  2. 

17.  1777,  C.  115,  S.  47. 


Chap.  IV.].  appeals.  65 

may  issue  execution  thereupon  without  granting  a  writ  of  proce- 
dendo :  and  to  prevent  the  obtaining  of  writs  of  error  by  surprise, 
the  party  praying  such  writ  in  a  civil  cause  shall  give  notice  in 
writing  to  the  adverse  party,  at  least  ten  days  before  motion,  of 
his  intention  to  move  for  such  writ,  and  no  such  writ  shall  be 
granted  without  affidavit  of  such  notice. 

18.  No  writ  of  error   shall  be  allowed,  brought  or  presented.  Time  within 
upon  any  judgment  rendered  in  any  of  the  county  courts  of  this  ^^^p  mustW 
State,  but  within  five  years  next  after  the  entering  such  judgment  brought. 
and  not  after. 

19.  If  any   person   or  persons  who  is,  are,  or  shall  be  entitled  Proviso  for per- 
to  prosecute  a  writ  of  error,  be,  or  shall  be,  at  the  time  of  his  or  abUities*^^'^  *^^^" 
their  right  to  bring  such  writ  of  error,  non  compos  mentis,  impri- 
soned or  beyond  the  seas,  then  such  person  or  persons  shall  be  at 

liberty  to  bring  a  writ  of  error,  so  as  they  bring  the  same  within 
two  years  after  their  being  of  sound  memory,  at  large,  returned 
from  beyond  the  seas,  or  of  age,  as  other  persons  having  no  such 
impediment  might  have  done. 

20.  No  writ  of  error  for  any  matter  of  fact   shall  be  allowed,  Timewithin 
brought  or  prosecuted,  upon  any  judgm.ent  rendered  in  any  of  the  error  foTmat° 
courts  of  this  State,  but  within  five  years  next  after  rendering  such  ^^^^  of  fact 
judgment  and  not  after.  brought. 

21.  No  cause  shall  be  transmitted  to  the  supreme  court  from  Appeals  from 
the  superior  court  of  law,   but  on   appeal  of  one  of  the  parties  ^^  TT^lh 
thereunto  from   the  sentence,  judgment  or  decree  of  the  said  su-  supreme  court 
perior  court  ;  and  such  appeal  may  take  place  in  any  cause  either  ^llows'i- 
civil  or  criminal,  on  giving  bond  and  adequate  security  to  abide 

the  sentence,  judgment,  or  decree  of  the  supreme  court,  and  such 
bonds  may  be  proceeded  on,  in  the  same  manner,  as  in  the  case 
of  appeals  from  a  county  court  to  a  superior  court. 

22.  Appeals  shall  be  allowed  from  any  final  judgment,  sentence  Supreme  court 
or  decree  of  the  superior  court,  and  in  every  case  of  such  appeal  J^Jj^t^p^^"^^' 
the  supreme  court  may  render  such  sentence,  judgment  or  decree  inspection  of 
as,  on  the  inspection  of  the  whole  record,  it  shall  appear  to  them  ^^^^^  ^  ^ ''^''' 
ought  in  law   to  be  rendered  thereon,  and  may  cause  the  same  to 

be  enforced  and  executed  upon  any  proper  process. 

23.  The  judges  of  the  superior   courts  may,  whenever  it  shall  Judges  of  the 
seem   to   them   necessary  or   proper,  allow   an  appeal  to   the  su- ^ly™{^^°^^^ 
preme  court  from  any  interlocutory  judgment  at  law,  at  the  motion  peals  from  in- 
of  the    party   supposing    himself  aggrieved   thereby,   upon    suchjud°,'iJ;'g°[J_ 
terms  as  the  said  judges  shall  deem  it  just  and   equitable  to  pre- 
scribe ;  and  when  such  appeal  shall  be  allowed,  the  judge  allowing 

the  same  shall  and  may  direct  so  much  only  of  the  records  and 
proceedings  in  the  cause  to  be  certified  to  the  supreme  court, -as 
he  shall  think  necessary  to  present  the  question  or  matter  arising 
upon  such  appeal  fully  to  be  considered  by  the  said  court. 

18.  1801,  c.  590,  s.  1. 

19.  1801,  c.  590,  s.  2. 

20.  1823,  c.  4,  s.  1. 

21.  1818,  c.  962,  s.  4. 

22.  1318,  c.  962,  s.4. 

23.  1S31,  c.  34,  s.  K 

VOL.  I.  9 


66     •  APPEALS.  [Chap.  IV.     * 

The  whole  24.   The  allowance  of  an  appeal  upon  such  interlocutory  judg- 

removed\o'the^^^'^t'  ^"^  ^^^^  Carrying  the  same  up  by  the  appellant,  shall  not  be 
supreme  court  deemed  in  law  to  remove  the  record  of  the  cause  into  the  supreme 
ance  of  such  court,  but  the  samc  shall  be  deemed  in  law  to  remain  in  the  court 
appeal.  whence  the  appeal  was  taken  ;  and  the  said  court  shall  have  power, 

notwithstanding  such  appeal,  to  make  all  necessary  orders  for  pre- 
paring the  cause  for  trial  as  fully  as  if  the  said  appeal  had  not  been 
taken. 
In  appeals  to        25.  In  all  cases  of  appeal  to  the  supreme  court  it  shall  be  the 
the  supreme     ^^^y  ^f  ^]^g  appellant  to  file  a  transcript  of  the  record  of  the  cause, 

court   the  a.p-  *^  ,      ^  ^  ,  ^ 

pellant  must  together  with  the  bond  given  for  the  appeal,  on  or  before  the 
Ble  a  transcript  ggygj^^jj  (j^y  Qf  ^]^q  ^g^jj^  ^^g^t  ensuing  said  appeal  ;  and  the  su- 

seven  days  of  preme  court  may  render  judgment  against  the  securities  for  an  ap- 
the  time.         peal,  in  the  same  manner  as  a  superior  court  may  on  appeal  from 

the  county  court. 
How  the  ap-        ^6.  If  the   appellant  shall  fail  to   file   the  transcript  and  bond 
pellee  may  pro- aforesaid,  as  is  above  directed,  it  shall  be  lawful  for  the  appellee, 
appellant  fails  either  to  file  the  same  at  any  time  during  that  or  the  next  succeed- 
to  file  the  tran-  ing  term,  or  to  obtain  a  certificate  from  the  clerk  of  the  supreme 
proper  term^.'^    court,  under  the  seal  of  the  court,  of  such  failure,  which  certifi- 
cate of  such  failure  on  the  part  of  the  appellant,  he  shall  file  in 
the  office  of  the  clerk  of  the   court  from  which   the  appeal  was 
prayed,  and  it  shall  be  the  duty  of  the  said   last  mentioned  clerk 
to  record  the  said  certificate,  and  thereupon  issue    execution,  or 
any  otlier  proper  process  on  the  judgment  rendered  in  the  superior 
court,  as  though  no  appeal  had  been  prayed,  taxing  double  costs 
against  the  appellant. 
How  judgment      27.   In  all  cases  of  appeal  to  the  supreme  court  they  may  ren- 
rendered.  °  ^  der  judgment  against  the  appellant  or  appellee  for  costs,  as  in  ap- 
peals from  the  county  to  the  superior  court  and  award  execution 
there  for> 
Appeals  to  the       28.   Appeals  shall  and  may  be   allowed  from  the  final  sentence, 
^"P''eme  court  judgment  or  decree,  or  from  any  interlocutory  order,  judgment,  or 
equity  causes,   decree  of  the  superior  court  of  equity,  to  the  supreme  court,  upon 
the  same  terms  and  under  the  same  rules,  regulations  and  provisions 
and  restrictions,  as  in  cases  of  appeals  from  the  superior  court  of 
law  to  the  supreme  court. 


24.  1831,  c.  34,  s.  2. 

25.  1818,  c.  963,  s.  6.— 1824.  C.1234,s..  1. 

26.  1818,  c.  963,  s.  7. 

27.  1831,  c.  34,  s.  4.— Amended. 

28.  IS19,C.  963,  s.  4.— 1831,  c.  34,  s.  1, 


/^^2-^  cL/.^i'^ 


Note.  —  References  to  Adjudged  Cases. 

Sect.  1.  Cooke  iJs.  Little,  1  Hay,  19.  Newnan  t's.  Ne%vTiam,  1  Murph.  178.  State 
vs.  Jones,  1  Murph.  257.  McGimjjsay  vs  Vail,  1  Murph.  408.  Gibson  vs.  Linch,  1 
Murph.  495.  Forsyth rs.  McCormick,  2  Car.  Repos.,  472.  Hunt »s.  Crowell,  2  Murph. 
424.  State  vs.  Jackson,  3  Murph.  230.  Ott  vs.  McBryde,  3  Murph.  235.  Sharp  vs. 
Jones,  3  Murph.  306.  Smith  vs.  Neal,  2  Hawks,  14.  McCullock  vs.  Tyson,  2 
Hawks,  336.  Medford  vs.  Harrell,  3  Hawks,  41.  State  vs.  Cherry,  2  Dev.  250. 
Hicks  vs.  Gilliam,  4  Dev.  217. 

Sect.  2.  Horton  vs.  Hortoa,  3  Dev.  441.  Pratt  »s  Kitrell,  4  Dev.  168.  Blunt  vs. 
Moore,    1  Dev.  and  Bat.  10. 


Chap.  V.] 


APPRENTICES. 


67 


Sect.  6.  Anon,  1  Hay,  171. 

Sect.  9.  Kinchin  vs.  Brickell,  2  Hay,  49. 

Sect.  10.  Yarborough  rs.   Giles,  1   Hay,  4.5.3.     Wilson  to.  Murchison,  2    Dev.  491. 

Sect.  21.  State  ds.  Robinson,  1  Hawks,  18S.  State  vs.  Saunders,  1  Hawks,  3.55. 
Cherry  vs.  Slade,  2  Hawks,  400.  State  Bank  vs.  Twitty,  2  Dev.  386.  State  vs.  Os- 
borne, 1  Dev.  and  Bat.  114. 

Sect.  22.     Pike  vs.  Armstead,  2  Dev.  Eq.,  24. 

Sect.  25.  State  vs.  Dickinson,  1  Dev.  and  Bat.  349. 

Sect.  26.  Mannings.  Sawyer,  1  Hawks,  33. 


CHAPTER    5. 


APPRENTICES 


AN   ACT   CONCERNING    APPRENTICES. 


Section 

U  County  courts  to  bind   out  orphan, 
children — What     orphans     to    be 
bound  out. 
2    To  what  persons,  and  for  what  time 
orphans  to  be  bound. 

3.  Duty  of  mEister  or  mistress  of  orphan 
apprentices. 

4.  The   bmding  to  be   by   indenture — 

Remedy  for  the   apprentice   upon 
the  deed  of  indenture. 

5.  In  what   cases   county  courts  may 
bind  out  free  children  of  color. 


Section 

6.  To  whom  free  children  of  color  are 

to  be  bound,  and  for  what  time. 

7.  Master   or  mistress   of   children  of 

color  to  give  bond  not  to  remove 
them  out  of  the  county.  Proviso 
for  sea-faring  persons. 

8.  Remedy  for  the  master  or  mistress 

of  apprentices  who  absent  them- 
selves from  their  service  after  ar- 
riving at  the  age  of  eighteen  years. 

9.  Penalty  for  harboring  orphan  children 

without  having  them  bound  out. 


1.  Be  if  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina,   and  it  is  hereby  enacted  by  the   authority  of  the  same, 

That  the  several  courts  of  pleas  and  quarter  sessions   shall  have  ^"^.^^^^  courts 
full  power  and  authority,  and  it  shall  be  their  duty,  to  bind  out,  as  phan  children, 
apprentices,  all  orphans  whose  estates  are  of  so  small  value  that  no 
person  will  educate  and  maintain  him  or  her  for  the  profits  thereof  ; 
also  all  children  under  age  whose  fathers  have  deserted  their  fami-  ^brbound '^^ 
lies,  and  have  been  absent  for  the  term  of  one  year,  leaving  them  out. 
without  sufficient  support,    or   where  application  may  be  made  to 
the  wardens  of  the  poor  for  rehef,  and  the  said  wardens  shall  cer- 
tify the  same  to  the  court  of  pleas   and  quarter  sessions  ;  also  all 
children  under  age,  whose  mothers   shall  have   secured  to  them 
such  property  as'  they  may  thereafter   acquire,   provided   in  this 
case  that  the  children  be  not  remaining   with  the  father,  and  the 
court,  in  its  discretion,  thinks  it  improper  to  permit  such  children 
to  remain  with  the  mother  ;  also  all  free  base  born  children. 

2.  Every  such  apprentice  shall  be  bound  to  some  tradesman.  To  what  per- 
merchant,  mariner,    or  other   person   approved  by  the  court,  until  ^Xat  time  or- 
phans to  be 
bound. 


1.  1762,  c.  69,  s.  19.- 

2.  1762,  c.  69,  s.  19. 


-1796,  c.  468,  s.  1.— 1800,  c.  567. 


68  APPRENTICES.  [ChAP.  V. 

he  shall  attain  the   age  of  twentyone  years,   and   every  female  to 
some  suitable  employment  till  her  age  of  eighteen  years. 
Duty  of  mas-        3.   The  master  or  mistress  of  every  such  apprentice  shall  find 
ter  or  mistress  ^j^^j  provide  for  him  or  her,  diet,  clothes,  lodeiins:,  and  accommo- 

of  orphan  ap-      ,     .  ^      ,.  ,  i     i     n  i  i  i  •  i 

prentices.         dations  lit  and  necessary,  and  snail  teach  and  cause  him  or  ner  to 
be  taught  to  read  and  write,  and  at  the  expiration  of  his  or  her  ap- 
prenticeship, shall  pay  to  such  apprentice  six  dollars,  and  furnish 
him  with  a  new  suit  of  clothes  and  a  new  bible  ;  and  if  upon  com- 
plaint made  to  the  court  of  pleas  and  quarter  sessions,  it  shall  ap- 
pear that  any  such  apprentice  is  ill  used  or  not  taught  the  trade,  pro- 
fession and  employment  to  which  he  or  she  was  bound,  it  shall  be 
lawful  for  such  court  to  remove  and  bind  him  or  her  to  such  other 
psrson  or  persons  as  they  shall  think  fit. 
The  binding  to      4.   The  binding  of  such  apprentice  by  order  of  the  court  as 
ture^  ^^     '     aforesaid,  shall  be  by  indenture,  made  in  the  name  of  the  chairman 
of  the  county  court  of  the  one  part,  and  of  the  master  or  mistress 
to  whom  he  or  she   shall  be  bound,  of  the  other  part  ;  which  in- 
denture shall  be  acknowledged  or   proved  before  such  court  and 
recorded,  and  a  counterpait  thereof  shall  remain  and  be  kept  in 
Remedy  for      ^^^®  clerk's  ofRce  for  the  benefit  of  the  apprentice  ;  and  any  person 
the  apprentice  or  persons  injured  may  and  shall,  at  his  or   her  cost  and  charges, 
oFTndenturT     pi'osecute  a  suit  thereon  in  the  name  of  the  chairman  as  aforesaid 
and  his  successors,  and  recover  all  damages  which  he  or  she  may 
have  sustained  by  reason  of  the  breach  of  the  covenants  therein 
contained,   and  if  any  verdict  or  judgment  shall  pass  for   such 
master  or  mistress,  he  or  she  shall  recover  costs. 
T     T.  t  oo»o        5.   The  court  of  pleas  and  quarter   sessions  shall  likewise  have 

In  what  cases  i  •       i     n  i-  i  •     i 

county  courts    power,  where  it  shall  appear  expedient,  to  bind  out  as  apprentices 
may  bind  out    „j|  jp^.gg  ^^^gg  j^^j^^j   children   of  color,   and  all  the  children  of  free 

Iree  children  oi  '  •  ,         i  i       i  -i 

color.  negroes  and  mulattoes   where  the  parents  with  whom  such  chil- 

dren may  live,  do  or   shall  not  habitually  employ  his  or  her  time 
in  some  honest,  industrious  occupation. 
To  whom  free        6.   All  apprentices  of  color  shall  be  bound  to  the  Same    persons 
color  are  to  be  ^^^  employments,  and  under  the  same  terms  and  conditions,  rules 
bound,  and  for  and  regulations,  as  before  prescribed  for  the  apprentices,  only  that 
for  what  time,  ^j^^  females  as  well  as  the  males    shall    be  bound  until  they    attain 
the  age  of  twentyone  years,  and  further  it  shall  not  be  incumbent 
upon  the  master  of  a  colored  apprentice  to  teach  him    or  her    to 
read  and  write. 
Master  or  mis-      7.   When  any  court  of  pleas  and  quarter  sessions  shall  bind  any 
tress  of  child-    orphan,  base  born,  or  other    child    of  color,  they  shall  take  bond 
give  bond  not  to  with  Sufficient  security  in  the  sum  of  five  hundred  dollars,  payable 
remove  them    ^q   ^he    State  of  North    Carolina  from   the  master    or  mistress, 
ly.  that  they  shall  not  remove  such  child  out  of  the  county  where    he 

or  she  is  bound  and  to  produce  him  or  her  before  such  court,  at 
any  time  when  the  said  court  may  require  it ;  and  also  to  produce 
such  person  at  the  expiration  of  the  term  of  his  or   her    service  ; 

3.  1762,  c.  69,  s.  19. 

4.  1762,  c.  69,  s.  20. 

.'5.  1762,  c.  69,  s.  19.— 1826,  c.  21,  S.  7. 

6.  1762,  c.  62,  s.  19. 

7.  1801,  c.  583,  s.  1  and  3. 


Chap.  V.]  apprentices.  69 

and  on  failure  thereof,  the  county  sohcltor  shall  and  he  is  hereby 
required  to  bring  suit  against  such  persons  on  said  bond,  for  the' 
benefit  and  use  of  the  person  bound  to  serve  as  aforesaid;  ^^o- p^^^^.^  . 
vided,  nevertheless.,  that  nothing  herein  contained  shall  subject  any  faring  persons, 
seafaring  person  to  the  penalties  herein  mentioned,  to  whom  any 
person  shall  be  bound  in  pursuance  of  this  act,  if  he  can  make  It 
appear  that  the  person  bound  to  him  died  on  a  voyage  without 
the  limits  of  the  comity,  or  deserted  from  his  service,  so  that  he 
could  not  again  procure  him  for  the  purpose  of  complying  with  the 
condition  of  the  bond. 

8.  If  any  apprentice,  whether  colored  or  otherwise,  who  shall  Remedy  for  the 
be  well  used  by  his  master  and  who  shall  have  received  from  his  i^^s^s  o'f  appren- 
said  master  not  less  than  six  months  schooling,  shall  absent  himself  tices  -wbo  ab- 
after  arriving  to  the  age  of  eighteen  years   from  his  master's    ser-  from^heir  seT^ 
vice,  before  the  term  of  his    apprenticeship    shall   have    expired,  yice  after  arriv- 
every  such  apprentice  shall  at  any  time  or  times    thereafter,  when-  o"f^eighte^en^^ 
ever  he  shall  be  found,  be  compelled  to   make   satisfaction   to  the  years, 
master  for  the  loss  he  shall  have  sustained  by  his  absence  from  his 

service  before  the  time  of  his  contract  shall  be  fulfilled  :  and  in 
case  any  apprentice  shall  refuse  to  make  such  satisfaction  to  his 
master,  such  master  may  recover  by  warrant  issued  and  returnable 
before  any  justice  of  the  peace,  such  satisfaction  not  exceeding 
sixty  dollars,  as  such  justice  may  determine  shah  be  made  to  such 
master  by  such  apprentice  ;  or  such  master  may  maintain  his  ac- 
tion on  the  case  against  such  apprentice  and  recover  his  damages 
as  a  jury  may  award  in  any  court  having  cognizance  thereof  :  Pro- 
vided, that  the  judgment  of  any  justice  upon  a  trial  under  this  sec- 
tion, shall  be  subject  to  the  same  rights  of  appeal  or  stay  of 
execution  as  in  other  cases  of  judgment  by  justices  of  the  peace  ; 
Provided,  also,  that  no  apprentice  shall  be  compelled  to  make  any 
satisfaction  to  any  master  after  the  expiration  of  seven  years  next 
after  the  end  of  the  term  for  which  such  apprentice  shall  have  con- 
tracted or  shall  be  bound  to  serve. 

9.  It  shall  not  be  lawful    for   any  housekeeper   to    harbor    and  Penalty  for 
conceal  or  hire  any  orphan  child  or  children,  without  first    obtain-  phan°cliifdren 
ing  leave  of  some  justice  of  the  peace,  under    the   penalty  of  ten  without  having 
dollars,  onehalf  to  the  informer  and  the  other   half  to  the  poor  of    ^^ 

the  county  ;  and  such  justice,  on  granting  permission,  shall  compel 
the  person  requiring  the  same  to  bring  the  said  orphan  child  to  the 
next  county  court,  which  is  hereby  required  to  bind  such  orphan 
children,  agreeable  to  law. 

8.  1812,  c.  840. 

9.  1734,  c.  213,  s.  5. 


Note — -References  to  Adjudged  Cases. 

Sect.  4.  Anon.  Hay.  144.    Dowd  vs.  Davis  4,  Dev.  61.     Mordlin  vs.  Maurice,  2  Dev. 
and  Bat. 


70  ,  ATTACHMENT. 

Arms. -/^<.^. 7   ^2i_  a 


^AuVsun^.i^if^'r,^'   Ck  J 


[Chap.  VL 


CHAPTER    6. 


ATTACHMENT. 


Attachment 
may  issue 
against  a  debt- 
or absconding 
or  concealing 
himself,  so 
that  the  ordina- 
ry process  of 
law  cannot  be 
served  upon 
him. 


AN  ACT  AUTHORIZING  ATTACHMENTS    TO  ISSUE  FOR  THE  RECOV- 
ERY OP  DEBTS,  AND  DIRECTING  THE  PROCEEDINGS  THEREON. 


Section 

1 .  Attachment  may  issue  against  a  debt- 

or absconding  or  concealing  him- 
self, so  that  the  ordinary  process  of 
law  cannot  be  served  upon  him. 

2.  May  also  issue  in  favor  of  a  citizen 

of  this  State,  against  a  non-resident. 

3.  Plaintiff  before  attachment  issues  to 

give  a  bond,  which  together  with 
the  affidavit,  must  be  returned  to 
court. 

4.  Form    of  the  attachment — Form  of 

the  bond. 

5.  Proceedings  on  attachments   and  a- 

gainst  garnishees. 

6.  When  a  garnishee  denies  that  he  has 

any  property,  5lc.  an  issue  may  be 
made  up. 

7.  Proceedings  where  an  attachment  is 

levied  upon  property  claimed  by 
another  person. 

8.  Specific  articles  confessed  by  a  gar- 

nishee shall  be  valued  by  a  jury 
and  judgment  given  for  value — In 
what  cases  garnishee  may  exone- 
rate himself  by  delivery  of  the  ar- 
ticles. 

9.  When  money  or  specific  articles  due 

or  deliverable  at  a  future  time,  con- 
ditional judgment  to  be  entered. 


11. 
12. 


Section 
10.  Persons  entering  themselves  as  spe- 
cial bail   on    replevying  property 
how  far  bound. 
Advertisement  to  be  made. 
When  judicial  process  may  issue. 

13.  Attachments  in  cases  cognizable  by 

ajustice  of  the  peace — Proceedings 
thereon. 

14.  How  garnishees  to  be  summoned,  and 

proceedings  against  them. 

15.  How  property  attached  may  be  re- 

plevied. 

16.  Specific  articles  confessed  by  a  gar- 

nishee, how  to  be  valued — Judg- 
ment to  be  given  for  the  value — 
How,  and  when  garnishee  may  ex- 
onerate liimself  by  the  delivery  of 
specific  articles  —  Garnishee  may 
have  stay  of  execution. 

17.  Attachment  to  be  stayed  thirty  da3's. 

18.  Persons  entering  themselves  as  spe- 

cial bail  on  replevying  property, 
how  far  liable. 

When  justice  to  direct  advertise- 
ment to  be  made,  and  how  long. 

V/hen  real  estate  is  attached  and 
condemned  by  a  justice,  the  pro- 
ceedinajs  must  be  returned  to  court. 


19. 


20. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  upon  any  complaint  being  made  on  oath  to  any  of  the  judges 
of  the  supreme  or  superior  courts  or  to  any  justice  of  any  of  the 
county  courts,  by  any  person,  his  attorney,  agent  or  factor,  that 
any  person,  (indebted  to  him)  hath  removed  or  is  removing  him- 
self out  of  the  county  privately,  or  so  absents  or  conceals  himself 
that  the  ordinary  process  of  law  cannot  be  served  on  such  debtor, 
and  if  such  plaintiff,  his  attorney,  agent  or  factor  further  swears  to 
the  amount  of  his  debt  or  demand,  to  the  best  of  his  knowledge 
and  behef,  it  shall  be  lawful  for  such  judge  or  justice,  and  he  is 


1.   1777,  c.  115,  s.  25  and  27. 


Chap.  VI.]  attachment.  71 

hereby  empowered  and  required  to  grant  an  attachment  against  the 
estate  of  such  debtor,  wherever  the  same  may  be  found,  or  in  the 
hands  of  any  person  or  persons  indebted  to,  or  having  any  of  the 
effects  of  the  defendant,  or  so  much  thereof  as  shall  be  of  value 
sufficient  to  satisfy  the  debt  or  demand,  and  costs  of  such  com- 
plaint, which  attachment  shall  be  returned  to  the  court  where  the 
suit  is  cognizable,  and  shall  be  deemed  the  leading  process  in 
such  action,  and  the  same  proceedings  shall  be  had  thereon  as  on 
judicial  attachments. 

2.  When  a  person,  who  shall  be  an  inhabitant  of  any  other  go-  May  also  issue 
vernment,  so  that  he  cannot  be  personally   served  with  process,  i"?  pvor  of  a 
shall  be  indebted  to  any  person,  a  resident  of  this  State,  and  hath  state  against  a 
any  estate  within  the  same,  any  of  the  said  judges  or  justices  may  non-resident. 
grant  an  attachment  against  the  estate  of  such  foreign  person  under 

the  rules,  restrictions  and  regulations  before  mentioned,  and  the 
same  proceedings  may  be  had  thereon. 

3.  Every  judge  or  justice,  before  granting  an  attachment,  shall  Plaintiff  before 
take  bond  and  security  of  the  party  for  whom  the  same   shall  begyg^j^'^t™^"^^!^ 
issued,  his  attorney,  agent  or   factor,  payable  to  the  defendant  in  bond,  which  to- 
double  the  sum  for  which  the  complaint  shall  be  made,  condition- f^jj^vu  must  ^ 
ed  for  satisfying  all  costs  which  shall  be  awarded  to  such  defend-  he  returned  to 
ant,  in  case  the  plaintiff  shall   be  cast  in  the  suit,   and  also   all'^°"'^' 
damages  which  shall  be  recovered  of  the  plaintiff  in  any  suit  or 

suits  which  may  be  brought  against  him  for  wrongfully  suing  out 
such  attachment ;  which  bond,  together  with  the  affidavit  of  the 
party  complaining  subscribed  with  his  proper  name,  shall  be  re- 
turned, by  the  justice  taking  the  same,  to  the  court  to  which  the  at- 
tachment is  returnable,  and  every  attachment  issued  without  bond 
and  affidavit  taken  and  returned  as  aforesaid  shall  be  abated  on  the 
plea  of  the  defendant. 

4.  The  attachment  shall  be  in  the  following  form,  (viz.) 

The  State  of  North  Carolina,  Form  of  the  at- 

To  the  sheriff  of  county,  greeting  :  tachmeat. 

Whereas  A.  B.  (or  A.  B. 
attorney,  agent  or  factor  as  the  case  may  be  of  C.  D.)  hath  com- 
plained on  oath  to  esquire,  one  of  the  judges 
of  the  supreme  or  superior  courts  of  law,  or  one  of  the  justices  of 
the  county  court  of  that  E.  F.  is  justly  indebted 
to  him  (or  to  the  said  A.  B.)  the  amount  of 
and  oath  having  been  also  made  that  the  said  E.  F.  hath  removed 
or  is  about  to  remove  himself  out  of  your  county,  or  so  absconds 
or  conceals  himself  that  the  ordinary  process  of  law  cannot  be 
served  on  him,  (or  is  an  inhabitant  of  another  government,  if  the 
case  is  so,)  and  the  said  having  given  bond 
and  security  according  to  the  directions  of  the  act  of  the  General 
Assembly  in  such  cases  made  and  provided  :  We  therefore  com- 
mand you  that  you  attach  the  estate  of  the  said  E.  F.  if  to  be 
found  in  your  county,  or  so  much  thereof  repleviable  on  security 

2.  1777,  c.  115,  s.  27. 

3.  1777,  c.  11.5,  s.  26. 

4.  1777,  c.  11.5,  s.  31  and  32. 


72  ATTACHMENT.  [ChAP.  VI. 

as  shall  be  of  value  sufficient  to  satisfy  the  said  debt  and  costs  ac- 
cording to  the  complaint,  and  such  estate  so  attached  in  your  hands 
to  secure,  or  so  to  provide  that  the  same  may  be  hable  to  further 
proceedings  thereupon  to  be  had  at  the  court  to  be  held  for 
of  at  on  the  day  of 

next,  so  as  to  compel  the  said  E.  F.  to  appear  and  answer 
the  above  complaint  of  the  said  when  and 

where  you  shall  make  known  to  the  said  court  how  you  shall  have 
executed  this  writ. 

Witness  esquire,  judge  or  justice  of  the  said 

court  at  the  day  of 

in  the  year  of  American  Independence. 

And  the  said  attachment  shall  be  signed  and  sealed  by  the  judge 
or  justice  granting  the  same. 

The  bond  to  be  given  upon  obtaining  such  attachment  shall  be 
as  follows  (to  wit  :) 

bond.  Know  all  men  by  these  presents  that  we  all  of  the 

county  of  are  held  and  firmly  bound  unto 

in  the  sum  of  to  be  paid  to  the  said  his 

certain  attorney,  executor,  administrator,  or  assigns,  for  which 
payment  well  and  truly  to  be  made,  we  bind  ourselves  and  each 
of  us,  our  and  each  of  our  heirs,  executors  and  administrators, 
jointly  and  severally,  firmly  by  these  presents,  sealed  with  our 
seals  and  dated  the  day  of  .     The  condi- 

tion of  the  above  obligation  is  such  that  whereas  the  above  boun- 
den  hath   the  day    of  the   date    hereof    prayed    an 

attachment  at  the  suit  of  against  the  estate  of  the 

above  named  for  the  sum  of  and  hath 

obtained  the  same  returnable  to  the  court  to  be  held  at 
on  the  day  of  next  ;  now  if  the  said 

shall  prosecute  his  said  suit  with  effect,  or  in  case  he 
fail  therein,  shall  well  and  truly  pay  and  satisfy  to  the  said 
all  such   costs   and   damages   as   shall  be  awarded  and  recovered 
against  the  said  his  heirs,  executors,  or  administra- 

tors in  any  suit  or  suits  which  may  be  hereafter  brought  for  wrong- 
fully suing  out  the  said  attachment,  then  the  above  obligation  to  be 
void,  otherwise  to  remain  in  full  force  and  effect.  Provided  that 
no  attachment  shall  be  abated  for  want  of  form  if  the  essential  mat- 
ters expressed  in  the  foregoing  precedent  be  set  forth  in  such  at- 
tachment. 
Proceedings  on  5.  When  any  goods  or  other  estate  shall  be  attached  by  vir- 
and  against '  tue  of  any  attachment,  whether  judicial  or  original,  it  shall  and 
garnishees.  lyjay  i,q  lawful  for  the  defendant,  his  or  her  attorney,  agent  or  fac- 
tor to  replevy  the  same  by  giving  bond  with  sufficient  security  to 
the  sheriff  or  other  officer  serving  such  attachment,  which  said 
bond  the  sheriff  or  other  officer  is  hereby  empowered  and  required 
to  take,  to  appear  at  the  court  to  which  such  attachment  is  returnable 
and  to  abide  by,  perform  and  satisfy  the  order  and  judgment  of 
such  court  ;  and  the  security  in  said  bond  shall  have  all  the  pow- 

5.    1777,  c,  115,  s.  23. 


Chap.  VI.]  attachment.  73 

ers  and  be  subject  to  all  the  liabilities,  except  as  hereinafter  pro- 
vided, of  special  bail  in  other  civil  cases,  and  when  the  estate  at- 
tached shall,  by  three  justices  of  the  county  court  to  be  summon- 
ed by  the  sheriff  for  that  purpose,  be  certified  on  oath  to  be 
perishable,  and  the  person  or  persons  to  whom  it  belongs,  his,  her 
or  their  attorney,  agent  or  factor  shall  not  within  sixty  days  after 
the  serving  of  such  attachment  replevy  the  same,  then  such  estate 
shall  be  sold  at  public  vendue  by  the  sheriff  or  other  officer,  he 
having  first  advertised  at  the  court  house  and  other  public  places . 
in  his  county  at  least  ten  days  before  the  sale,  and  the  money 
arising  from  such  sale  shall  be  liable  to  the  judgment  obtained  up- 
on such  attachment  and  deposited  in  the  hands  of  the  clerk  of  the 
court  to  which  the  process  shall  be  returnable,  there  to  wait  the 
event  of  such  judgment  ;  and  where  the  sheriff  or  other  officer 
shall  serve  an  attachment  in  the  hands  of  any  person  or  persons, 
supposed  to  be  indebted  to,  or  supposed  to  have  any  of  the  effects 
of  the  party  absconding  or  residing  out  of  the  State,  he  shall  at 
the  time  summon  such  person  or  persons  as  a  garnishee  or  garni- 
shees in  writing,  to  appear  at  the  court  to  which  the  attachment 
shall  be  returnable  within  the  first  four  days  of  the  first  term  there- 
of, there  to  ansv.^er  upon  oath  what  he  or  she  is  indebted  to  the 
defendant,  and  what  effects  of  the  defendant  he  or  she  hath  in  his 
or  her  hands  and  had  at  the  time  of  serving  such  attachment,  and 
what  effects  or  debts  of  the  defendant  there  are  in  the  hands  of 
any  other  and  what  person  to  his  or  her  knowledge  and  belief; 
and  when  any  attachment  shall  be  served  in  the  hands  of  any  gar- 
nishee in  manner  aforesaid,  it  shall  be  lawful  upon  his  or  her  ap- 
pearance and  examination  to  enter  up  judgment  and  award  execu- 
tion against  any  such  garnishee,  for  all  sums  of  money  due  to  the 
defendant  from  him  or  her  and  for  all  effects  and  estate-  of  any 
kind  belonging  to  the  defendant  in  his  or  her  possession  or  custo- 
dy, for  the  use  of  the  plaintiff,  or  so  much  thereof  as  shall  be  suf- 
ficient to  satisfy  the  debt  and  costs,  and  all  charges  incident  in  le- 
vying the  same,  and  all  goods  and  effects  whatsoever  in  the  hands 
of  any  garnishee  or  garnishees  belonging  to  any  defendant  shall  be 
liable  to  satisfy  the  plaintiff's  judgment,  and  shall  be  delivered  to 
the  sheriff'  or  other  officer  serving  the  attachment  ;  and  when  any 
garnishee  shall  be  returned  by  the  sheriff"  or  other  officer  summoned 
in  manner  aforesaid  and  shall  fail  to  appear  and  discover  on  oath, 
as  above  directed,  it  shall  be  lawful  for  the  court,  after  solemnly 
calhng  the  garnishee,  and  such  court  is  hereby  authorized  and  re- 
quired to  enter  a  conditional  judgment  againt  such  garnishee,  and 
upon  such  judgment  so  entered  a  scire  facias  shaW  issue  against, 
such  garnishee,  returnable  to  the  next  term,  to  show  cause  if  any 
he  hath,  why  final  judgment  should  not  be  entered  against  him, 
and  upon  such  scire  facias  being  duly  executed  and  returned,  if 
such  garnishee  shall  fail  to  appear  at  the  next  term  and  discover 
on  oath  in  manner  aforesaid,  the  court  shall  confirm  such  judg- 
ment and  award  execution  for  the  plaintiff's  whole  judgment  and 
costs  ;  and  if  upon  examination  of  any  garnishee  it  shall  appear  to 
the  court  that  there  is  any  of  the  defendant's  estate  in  the  hands  of 

VOL.    I.  10 


74  ATTACHMENT.  [ChAP.    VI. 

any  person  or  persons,  who  have  not  been  summoned,  such  court 
shall  upon  motion  of  the  plaintiffs  grant  a  judicial  attachment  to  be 
levied  in  the  hands  of  such  person   or  persons,  having  any  of  the 
estate  of  the  defendant  in  his,  her,  or  their  custody  or  possession, 
who  shall  appear  and  answer,  and  shall  be  liable  as  other  garni- 
shees. 
When  a  garni-       6.   When  any  garnishee  shall  be  called  into  court  and  in  his  or 
he^hasTnypro-^®^  garnishment  shall  deny  that  he  or  she  owes  to  or  has  in  his  or 
perty,  c&c.  an     her  hands  any  property  of  the  defendant,  and  the  party  plaintiff  in 
made  up^  ^^    ^^'^^^  attachment  shall  on  oath  suggest  to  the  court  that  such  garni- 
shee owes  to  or  has  property  in  his  or  her  hands  belonging  to  the 
defendant,  or  when   any  garnishee  shall  in  his  or  her  garnishment 
make  such  a  statement  of  facts  that  the  court  before  whom  such 
garnishment  shall  be  made  cannot  proceed  to  give  judgment  there- 
on, then  in  either  of  these  cases  the  court  shall  order  an  issue  to 
be  made  up,  which  shall  be  tried  by  a  jury,  and  the  court  shall  give 
judgment  on  their  verdict  as  in  other  cases. 
Proceedings  7.    When  any  person  shall  sue  out  an  attachment,  and  the  same 

where  an  at-     gj^jj]]  j^g  levied  on  property  which  shall  be  claimed  by  any  other 

t3.cnni8iit  IS  1       J.         •/  J         J 

levied  upon  porson,  such  claimant  shall  be  at  liberty  to  interplead,  first  giving 
Pj°vP®^^y  'rlf^"^'  security  for  such  costs  and  damages  as  may  be  awarded  against 
person,  him,  and  shall  at  the   same  time  file  a  petition  in  writing,  setting 

forth  the  particular  property  claimed  and  by  what  right  or  title  he 
ejaims  the  same,  a  copy  of  which  petition  shall  be  served  on  the 
party  suing  out  such  attachment,  at  least  ten  days  before  the  next 
court,  and  at  the  court  to  which  the  return  of  such  petition  shall 
be    made,    the    court   shall  order  a  jury   to  be    empanelled    to 
inquire  in  whom  the  property  is  of  such  article  or  property  as  may 
be  so  levied  upon,  and  the  finding  of  such  jury  shall  be  conclusive 
as  to  the  parties  then  in  court,  and  the  court  shall  adjudge  accord- 
ingly. 
Specific  articles      8.   Whenever  any  garnishee  shall  on  oath  confess  that  he  or  she 
garnishee  s^aU  ^as  in  his  or  her  hands  any  property  of  the  defendant  of  a  specific 
be  valued  by  a  nature,  or  is  indebted  to  such  defendant  by  any  security  or  assump- 
ment  givenfof' tion  for  the  delivery  of  any  specific  article,    (except  as  herein- 
the  value.        after  excepted,)  then  in  either  of  these   cases,  the  court,  before 
whom  such  garnishment  shall  be  made,  shall  immediately  order  a 
jury  to  be  empanelled  and  sworn  to  enquire  of  the  value  of  such 
specific  property,  and  the  verdict  of  such  jury  shall  subject  such 
garnishee  to  the  payment  of  such  valuation  or  so  much  thereof  as 
shall  be  sufficient  to  satisfy  the   debt  or  damages  and  costs  of  the 
party  at  whose  instance  such  garnishee  shall  have  been  summoned 
In  what  cases  — Provided,  that  if  such  garnishee  shall  also   state  in   his  garnish- 
exonerate  him^  ment  that  the  said  specific  property  was  left  or  deposited  in  his 
self  by  delivery  or  her  possossion  by  the  defendant  as  a  bailment,  or  shall  state  in 
o  t  eartices.  j^j^   garnishment  that  he  hath  tendered   the  said  specific  articles, 
agreeably  to  contract,  and  that  they  were  refused  by  the  defendant, 
and  that  he  then  was   and  always  had  been  ready  to  deliver  the 
same,  or  that  he  had  such  specific  articles  at  the  time  and  place 

6.  1793,  c.  389,  s.  2. 

7.  1793,  c.  389,  s.  3. 

8.  1793,  C.  389,  S.  1.— 1794,  C.  424,  S.  1. 


I 


Chap.  VL]  attachment.  75 

specified  in  such  covenant  or  agreement  ready  to  be  delivered,  and 
that  he  was  still  ready  to  dehver  the  same,  and  when  such  garnish- 
ment shall  be  admitted  by  the  plaintiff  or  found  by  a  jury,  then  in 
any  of  such  cases  such  garnishee  shall  and  may  be  exonerated  by 
the  delivery  of  such  specific  articles  to  the  sheriff,  who  levied  the 
attachment,  who  sliall  proceed  as  if  the  attachment  had  been  origi- 
nally levied  on  such  article  or  articles. 

9.  When  any  garnishee  shall  declare  on  his  garnishment  that  the  Wheremoneyor 
money  or  specific  article  due  by  him  or  her  will  become  payable  aredue orddiv- 
or  deliverable  at  a  future  day,  and  the  same  shall  be  admitted  by  erable  at  a  fu- 
the  plaintiff  or  found  by  a  jury,  then  and  in  such  case  conditional  ditfonaMudee- 
judgment  shall  be  entered  against  such  garnishee,  and  the  plaintiff  ment  to  be  en- 
may  proceed  to  ascertain  his  demand  by  judgment  against  the  de-  ^^  ■*^'-°" 
fendant,  but  shall  not  take  final  judgment  against  such  garnishee 

without  notice  by  scire  facias  on  which  the  plaintiff  may  proceed 
as  in  other  cases. 

10.  The  person  or  persons,  entering  themselves  as  special  hail  J'"'®°"^,  ^"^^'^■ 
on  replevying  property  attached,  shall  only  be  held  liable  to  answer  selves  as  spe- 
the  value  of  the  property  which  he,  she,  or  they  as  aforesaid  do  ^f^  ^?'^  °"  '■^' 

1       1        »/  ,  -'  ,         *^  pJevyinGf  pro- 

respectively  hold  or  have  returned  in  the  garnishment  and  no  more,  perty  how  lar 
but  the  security  replevying  shall  not  avail  themselves  of  paying  the"°"'^^- 
value  of  the  property  so  replevied,  unless  such  security  shall  at 
the  return  term  move  the  court  to  empanel  a  jury  to  ascertain 
such  value  by  inquiry,  which  inquiry  the  court  shall  have  executed 
on  motion  made  as  aforesaid,  notice  being  given  to  the  plaintiff  in 
attachment,  his  agent  or  attorney,  at  least  five  days  before  such 
motion  shall  be  made. 

11.  When  any  original  or  judicial  attachment  shall  be  returnedAdvertisement 
to  any  court,   as   levied  upon  the  goods  and  chattels,    lands   and '°  e  ma  e. 
tenements  of  any  person  or  persons  residing  without  the  county  in 

which  such  attachment  has  been  issued,  it  shall  be  the  duty  of  the 
clerk  of  such  court  to  cause  the  same  by  public  advertisement  to 
be  made  known  for  six  weeks  (and  longer  if  the  court  shall  direct) 
next  after  the  return  made  as  aforesaid,  and,  until  the  said  six 
weeks  shall  have  expired,  it  shall  not  be  lawful  for  such  court  to 
suffer  any  final  judgment  to  be  entered  upon  any  such  attachment, 
and  the  costs  of  such  advertisement  shall  be  taxed  by  the  clerk  in 
the  bill  of  costs  and  be  paid  by  the  person  liable  to  pay  the  other 
costs. 

12.  No  judicial  process  shall  be  issued  against  the  estate  of  any  Where  judicial 
person  residing  without  the  limits  of  this  State,  unless  such  process  sue!"^  "^^^  ^^' 
is  grounded  on  an  original  attachment,  or  unless  the  leading  pro- 
cess in  the  suit  has  been  executed  on  the  person  of  the  defendant 

Avhen  within  the  State. 

13.  In  cases  whereby  law  a  justice  of  the  peace  has   jurisdic- Attachments  in 
tion,  on  complaint  being  made  on  oath  by  any  person    or    persons  bk  bVa^s^Ut^e 
his    or   their  agent,   attorney  or  factor,  that  any  person  hath    re-of  the  peace. 
moved,  or  is  removing  him  or  herself  out  of  the  country  privately,  ^emm."^^^ 

9.  1794,  c.  424,  s.  2. 

10.  1793,  c.  3S9,  s.  5. 

11.  1793,  c.  389,  s.  6—1825,  c.  1297—1819,  c.  995,  S.  1. 

12.  1793,  c.  389,  s.  4. 
13.1777,0.115,5.66.  1794,0.414,6.7. 


76  ATTACHMENT.  "    '      [ChAP.    VI. 

or  SO  absconds  or  conceals  him  or  herself  that  the  ordinary  pro- 
cess of  law  cannot  be  served  on  such  debtor,  or  that  such  debtor 
is  an  inhabitant  of  another  government,  and  if  such  plaintiff  his, 
her  or  their  agent,  attorney  or  factor,  further  maketh  oath  to  the 
amount  of  hisj  her  or  their  debt  or  demand  to  the  best  of  his,  her 
or  their  knowledge  and  behef,  it  shall  and  may  be  lawful  for  any 
justice  of  the  peace  and  he  is  hereby  empowered  and  required  to 
grant  an  attachment  against  the  estate  of  such  debtor,  wherever  the 
same  may  be  found  in  his  county  or  in  the  hands  of  any  persoir' 
or  persons  indebted  to  or  having  any  of  the  effects  of  the 
.defendant,  or  so  much  thereof  as  shall  be  of  value  sufficient  to  sat- 
isfy the  debt  or  demand  and  costs  of  such  complaint,  which  at- 
tachment shall  be  returnable  before  some  justice  of  the  peace  on 
or  before  thirty  days  after  the  date  thereof  to  be  proceeded  on 
:as  hereafter  directed.  Provided  always^  that  every  such  justice, 
before  granting  such  attachment,  shall  take  bond  with  sufficient 
security  of  the  party  for  whom  the  same  shall  be  issued,  his,  her 
or  their  agent,  attorney  or  factor,  payable  to  the  defendant  in  dou- 
ble the  sum  for  which  the  complaint  shall  be  made,  conditioned  to 
satisfy  all  costs  which  shall  be  awarded  to  such  defendant  in  case 
the  plaintiff  shall  be  cast,  and  also  all  damages  which  may  be  re- 
covered against  the  plaintiff  in  any  suit  or  suits  which  may  be 
brought  against  him  or  her  for  wrongfully  suing  out  such  attach- 
ment ;  which  bond,  together  with  the  aJSdavit  of  the  party  com- 
plaining subscribed  with  his  or  her  proper  name,  shall  be  filed  by 
the  justice  who  shall  try  the  cause  with  the  attachment  and  other 
papers  relative  thereto,  and  the  proceedings  thereon  shall  be  had 
in  a  summary  way,  in  the  same  manner  as  on  warrants  ;  and  the 
■  defendant  may  replevy  the  property  so  attached,  by  giving  bond 
and  security  to  the  officer  serving  such  attachment,  conditioned  to 
appear  before  some  justice  of  the  peace,  to  abide  by  and  perform 
the  order  or  judgment  that  shall  be  made  thereon. 
How  garnishees  14.  When  the  sheriff,  constable,  or  other  officer,  shall  serve  an 
ed^ancTOTweed- ^^^^"^-^®^''  ^^  ^^^®  hands  of  any  person  or  persons,  supposed  to  be 
ingsagainst  indebted  to,  or  supposed  to  have  any  of  the  effects  of  the  party  or 
parties  absconding  or  residing  out  of  the  State,  he  shall  at  the  same 
time  summon  such  person  as  garnishee  in  writing  to  appear  before 
the  justice,  before  whom  the  attachment  shall  be  returned,  there 
to  answer  on  oath  relative  to  what  he  or  she  is  indebted  to  the 
defendant,  and  what  effects  of  the  defendant  he  or  she  hath  in  his 
or  her  hands  and  had  at  the  time  of  serving  such  attachment,  and 
what  effects  or  debts  of  the  defendant  there  are  in  the  hands  of 
any  other  person,  and  what  person  to  his  or  their  knowledge  or 
belief.  And  when  any  attachment  shall  be  served  in  the  hands  of 
any  garnishee  in  manner  aforesaid,  it  shall  be  lawful  upon  his,  her 
or  their  appearance  and  examination  to  enter  up  judgment  and 
award  execution  against  such  garnishee  for  all  sums  of  money  due 
to  the  defendant  from  him  or  her,  and  for  all  the  effects  or  estate 
of  any  kind  belonging  to  the  defendant  in  his  or  her  possession  or 
custody,  for  the  use  of  the  plaintiff,  or  so  much  thereof  as  shall  be 

14.  1794,  c.  414,  s.  8,  9  and  10. 


them. 


Chap.  VI.]  attachment.  •  77 

sufficient  to  satisfy  the  debt  and  costs  and  all  charges  incident  to 
levying  and  securing  the  same  ;  and  all  the  goods  and  effects  what- 
soever in  the  hands  of  any  garnishee  or  garnishees,  belonging  to 
any  defendant,  shall  be  hable  to  satisfy  the  plaintiff's  judgment, 
and  shall  be  delivered  to  the  sheriff  or  other  officer  serving  the 
attachment  ;  and  when  any  garnishee,  summoned  as  aforesaid, 
shall  not  appear  and  discover  on  oath  as  by  law  directed,  it  shall 
be  lawful  for  the  justice  to  issue  a  notice  in  writing  for  the  said 
garnishee  to  appear  at  such  place  and  on  such  day  as  he  may 
appoint,  to  shew  cause  why  judgment  shall  not  be  entered,  and 
execution  awarded  against  him,  which  notice  shall  be  served  by 
the  sheriff,  constable  or  other  officer,  and  upon  such  notice  being 
duly  executed  and  returned,  if  the  garnishee  shall  fail  to  appear 
and  discover  upon  oath  in  manner  aforesaid,  the  justice  shall  give 
judgment  against  such  garnishee  for  the  plaintiff's  full  demand  with 
costs,  and  award  execution  accordingly.  When  any  property 
attached  as  aforesaid  shall  be  claimed  by  any  other  person  or 
persons,  and  to  determine  the  right  the  intervention  of  a  jury  may 
be  necessary,  the  party  claiming  such  property  may  appeal  to  the 
next  county  court,  where  such  right  upon  an  issue  joined  shall  be 
tried  by  a  jury  of  good  and  lawful  men  ;  the  party  claiming  first 
giving  bond  with  sufficient  security  to  pay  all  costs  and  charges  in 
case  he,  she  or  they  shall  fail  to  prosecute  the  said  suit  with  effect  ; 
and  the  verdict  of  the  jury  in  such  case  shall  be  conclusive  as  to 
the  parties  then  in  court,  and  the  court  shall  give  judgment  accord- 
ingly. When  any  garnishee  shall  on  his  or  her  garnishment  deny 
that  he  or  she  has  in  his  or  her  possession  any  property  of  the 
defendants,  and  the  plaintiff  in  such  attachment  shall  on  affidavit 
suggest  to  the  justice  that  such  garnishee  owes  to  or  has  property 
in  his  or  her  hands  belonging  to  the  defendant,  or  when  any  gar- 
nishee shall  on  his  or  her  garnishment  make  such  a  statement  of 
facts  that  the  justice  before  whom  such  garnishment  shall  be  made 
cannot  proceed  to  give  judgment  thereon,  then  in  either  of  these 
cases,  the  justice  shall  return  the  attachment  and  other  papers  to 
the  next  county  court  to  be  held  for  his  county,  and  the  court 
shall  order  an  issue  or  issues  to  be  made  up  and  tried  by  a  jury, 
and  the  court  shall  give  judgment  on  the  verdict  of  the  jury  as  in 
other  cases. 

15.  When  any  goods  or  other  estate  shall  be  attached  by  virtue  How  property 
of  any  attachment  issued  agreeably  to   the   directions  of  the   two  attached  may 
preceding  sections  of  this  act,  it   shall  and  may  be  lawful   for  the  °  ""^P  ®  ^ 
defendant  or  defendants,  his,  her  or  their  attorney,  agent,  or  factor, 
to  replevy  the  same  by  giving  bond  with  sufficient  security  to  the 
sheriff,  constable  or  other  officer  serving  such  attachment ;  which 
said  bond  the  sheriff,  constable  or  other  officer  is  hereby  empow- 
ered and  requir(;d  to  take  to  appear  before  the  justice  to  whom 
such  attachment  is  returnable,  and  to  abide  by,  perform  and  satisfy 
the   order  and  judgment  of  such  justice  ;  and    when   the    estate 
attached  shall,  by  three  freeholders  of  the  county,  to  be  summoned 
by  the  sheriff,   constable,  or  other  officer  for  that  purpose,   be 

15.   1794,  c.  414,  S.  11. 


T8  •  ATTACHMENT.  [ChAP.    VI. 

certified  on  oath   to  be  perishable,  and  the  person  or  persons  to 
whom  it  belongs  his,  her  or  their  attorney,   agent  or  factor,  shall 
not  within  thirty  days  after  the  serving   such  attachment,  replevy 
the  same,  then  such  estate   shall  be  sold  at  public  vendue   by  the 
sheriff,  constable  or  other  officer  ;  he  having  first  advertised  such 
sale  at  the   court  house   and  other  public  places  in  the  county  at 
least  ten  days  before  the  sale.     And  the  money  arising  from   such 
sale,  shall  be  liable  to  the  judgment  obtained  upon   such  attach- 
ment and  shall  be  retained  and  kept  by  the  officer  to  wait  the  event 
of  such  judgment. 
Specific  articles      iQ,   Whenever  any  garnishee  shall  on  oath  confess  that  he  or 
garnishee  how  she  has  in  his  or   her  hands   any  property  of  the   defendant  of  a 
to  be  valued—  specific  nature,  or  is   indebted  to   the   defendant  by  a  security  or 
given  for  the     assumption,  for  the  payment  or  delivery  of  tobacco  or  other  spe- 
vaiue.  cific  articles,   then  in  either   of  those   cases,  the  justice,  before 

whom  such  garnishment  shall  be  made,   shall  immediately  order 
three  freeholders  to  be  sworn  to  enquire  of  the  value  of  such  spe- 
cific property,  and  their  verdict  shall  subject  such  garnishee  to  the 
payment  of  such  valuation,  or  so  miuch  thereof  as  shall  be  suffi- 
cient to  satisfy  the  debt  and  costs  of  the  party  at  whose  instance 
such  garnishee  shall  have   been  summoned.      Provided  always, 
How  and  when  That  such  garnishee,  who  may  on  oath  confess  that  he  or  she  has 
garnishee  may  in  his  or  her  hands  any  specific  property  of  the  defendant,  as  left 
Snrynhe  d™  ^^  deposited  in  his  or  her  possession,  by  such  defendant,  may  al- 
livery  of  specif- ways  exonerate  him  or  herself  by  delivering  such  property  to  the 
ic  ar  ic  es.        sheriff,  constable  or  other   officer  who  levied  such  attachment  or 
Garnishee  may^^nay  levy  the  execution  issued  thereon.     Provided  always,  That 
havestayofex- when  judgment  shall  be  entered  up  against  any  garnishee,  declar- 
ing as  aforesaid,  he  shall  on  giving   security  if  required,  have  the 
same  stay  of  execution  as  such  garnishee  would  have  been  enti- 
tled to,  had  he  been  original  defendant  in  the  suit. 
Attachment  to        17.   In  all  suits  commenced  by  attachment  as  herein  directed, 
ty  day^!      ^^   which  shall  be  returnable  before  a  justice  of  the  peace,  the  justice 
to  whom  such  attachment  shall  be  returned,  shall  stay  all  proceed- 
ings thereon,  for  the  space  of  thirty  days,  unless  the  defendant  to 
such  suit  by  attachment,  his   agent  or   attorney   shall  replevy  the 
goods,  chattels,  or  property  so  attached. 
Persons  enter-       18.   The  person  or  persons,  entering  themselves  as  special  bail 
ing  themselves  on  replevying  property  attached,   shall  only  be  held  liable  to  an- 
on replevying    swer  the  value  of  the  property  which  he,  she  or  they  as  aforesaid 
property  how    Jq  respectively  hold  or  have  returned  in  the  garnishment,  and  no 
more  ;  but  the  security  replevying  shall  not  avail  themselves  of 
paying  the  value  of  the   property  so  replevied,   unless  such  secu- 
rity shall  on  the  return  of  such   attachment  to  the  justice,  require 
that  such  value  should  be  ascertained  by  an  inquiry,  which  inquiry 
the  justice  shall  have  executed  on  request  as  aforesaid,  by  three 
freeholders,  by  him  summoned  to  assess  and  value  such  property 
on  oath,  notice   being   given  to   the  plaintiff  in  attachment,   his 

16.  1794,0.  414,  s.  12. 

17.  1794,  c.  414,  s.  13. 

18.  1794,  c.  414,  s.  14. 


Chap.  VII.] 


ATTORNEY  GENERAL,  ETC. 


79 


agent  or  attorney,  at  least  five  days  before  such  inquiry  shall  be 
executed. 

19.  When  any  attachment,  issued  asreeablv  to  this  act,  shall  be'jy'^^J"^^!^?^© 

y  '  \~>  J  -'  Qircct  ciciv6rtis6- 

returned  to  any  justice  of  this   State   as   levied  on  the  goods  and  ment  to  be 
chattels,  lands   and  tenements   of  any  person   or   persons,  resid- ™^^^' '^'^'^  ^°^ 
ing  without  the  county  in  which  such  attachment  is  issued,  it  shall 
be  the  duty  of  the  justice  to  direct  advertisements  of  the  same  for 
the  space  of  thirty  days. 

20.  When  the  constable,  or  other  lawful  officer,  shall  attach  any  When  real  es- 

,  .  iiir  ••ri  t3-te  IS  attached 

real  estate,  ni  any  cause  returnable  beiore  a  justice  oi  the  peace,  and  condemned 
and  the  iustice  shall  condemn  the   same  for  the  satisfaction  of  the  ^y  a  justice, 

•        •  •  •  tllG  TDrOCGGQlIl'-'^S 

plaintiff's  debt, said  justice  shall  return  the  proceedings  to  the  next  must  be  return - 
county  court,  which  may  affirm  the  judgment  of  the  justice,  and  ^d  to  court, 
issue  a  venditioni  exponas,  as  in  other  cases  of  constable's  levy  on 


19.  1794,  c.  414,  s.  15. 

20.  Amendment. 


/f3  r.  J? 


Note  —  References  to  Adjudged  Cases. 

Sect.  1.  Oneil  vs.  Owens,  1.  Hay.  365  Hawks  vs.  Fabee,  2  Hay,  158.  Alston 
rs.  Clay,  ib.,  171.  Powell  I's.  Hampton,  Conf.  86.  Bickerstaff  rs.  Delozer.  ib.,  299. 
English  vs.  Rej-nolds,  N.  C.  Term  R.  92.  Amyett  rs.  Backhouse,  3  Murph  63. 
Washington  vs.  Saunders,  2  Dev.  343.  Gillis  vs.  McCoy,  4  Dev.  172.  Skinner  vs.  Moore, 
2  Dev.  and  Bat. 

Sect.  2.  Broghill  »s.  Welborne,  4  Dev.,  511. 

Sect.  3.  Summers  vs.  Parker,  N.  C.  Term  R.  147.  State  Bank  vs.  Hinton,  1  Dev., 
397. 

Sect.  5.  Hightower  us.  Murray,  1  Hay,  21.  Mallett  vs.  London,  2  Hay,  158.  Welsh 
vs.  Gurley.  ib.'334.  Gee  t's.  Warrick,  ib  354  and  358.  Overton  rs.  Hill,  1  Murph 
47.  Russell  vs.  Hinton.  ib.  463.  Orr  vs.  McBryde,  2  Car.  Repos.,  257.  Peace  vs. 
Jones,  3  Murph,  256.     Elliott  vs.  Newby,  2  Hawks,  21.     Cowles  vs.  Oaks,  3  Dev.,  96. 

Sect.  6.  Jenkins  vs.  Langdon,  2  Hawks,  386. 

Sect.  7.  Simpson  vs.  Harry,  1  Dev.  and  Bat.  202. 


CHAPTER  7. 

ATTORNEY     GENERAL.    AND    SO- 
LICITORS. 


AN  ACT  CONCERNING  THE  ATTORNEY  GENERAL 

TORS  FOR  THE  STATE. 


AND  SOLICI- 


Section 

1.  Attorney  general   to  attend  the  su- 

preme court,  also  to  prosecute  in  the 
third  circuit. 

2.  Six  solicitors  to  be  appointed. — To 

hold  office  four  years,  and  to  prose- 
cute in  their  respective  circuits. 


Section 

3.  How  vacancies  in  the  office  of  solici- 

tor during  the  recess  of  the  legisla- 
ture to  be  filled. 

4.  County  solicitors  to  be  appointed  by 

the  county  courts.     Their  term  of 
office  and  duty. 


80  ATTORNEYS    AT    LAW.  [ChAP.  VIII. 

Attorney  gen-        1,   ^E  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 

the  supreme      Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

court  — also  to  That  the  attorney  general  shall  attend  to  all  the  business  which  is 

theThird^dr-    "^^^  pending  in,  or  which  may  hereafter  be  carried  up  to  the  su- 

cuit.  preme  court  of  the  State  for  adjudication,  wherein  the  State  may  be 

concerned  or  in  any  manner  have  any  interest  therein.      He  shall 

also  attend   and   prosecute  in  behalf  of  the  State  in  the  superior 

courts  comprising  the  third  circuit. 

Six  solicitors        2.   In  addition  to  the  attorney  general,  there  shall  be  appointed 

to  be  appoint-  ^j  joint  vote  of  both  houses  of  the  General  Assembly,  six  so- 

To  hold  office  Hcitors,  who  shall  hold  their  offices  for  four  years  and  no  longer, 

four  years  and    ^     j-^      j^^^j]  attend  and  prosecute  in  behalf  of  the  state  in  the  re- 

to  prosecute  m  .  .         .        -  i  •    i      i  i     n  i  •  i 

their  respective  spective  circuits  lor  which  they  shall  be  appomted. 

circuits.  3    Whenever  any  vacancy  shall  happen  either  bv  the  death,  re- 

How  vacancies  .  .    -^     ^  •'^   i  ,.    •  r   i  •     o  •       i 

in  the  office  of  moval  or  resignation  oi  any  oi  the  solicitors  oi  this  otate,  m  the  re- 

ihe  recess'or^  ^^^^  ^^  ^^^^  legislature,  it  shall  be  the  duty  of  the  judge,  who  is  next 
the  legislature,  to  ride  the  circuit,  wherein  such  vacancy  has  happened,  to  appoint 
to  be  filled.       ^  solicitor  pro  tempore,  who  shall  have  all  the  powers  and  authori- 
ties, receive  the  same  salary  and  be  subject  to  the  performance  of 
all  the  duties  of  such  office,  and  be  deemed  to  be  in  office  until 
the  end  of  the  legislature,  which  shall  first  happen  subsequent  to 
his  appointment. 
County  solicit-      4,   The  several  courts  of  pleas  and  quarter  sessions  within  this 
pointed'by^t'he  State,  a  majority  of  the  acting  justices  of  the  county  being  pre- 
county  court,    sent,  shall,  by   a  vote  of  a  majority  of  the  justices  present,  ap- 
office  andduty.  point  an  attorney  properly  qualified  to  act  for  and  in  behalf  of  the 
state  in  such  respective  county,  who  shall  hold  his  office  during 
the  term  of  four  years,  and  shall  and  may  prosecute  all  matters 
cognizable  in  the  county  court  of  pleas  and  quarter  sessions,  where- 
in he  shall  be  appointed  for,  and  in  behalf  of  the  state. 

1.  1809,  c.  768.— 1806,  c.  693,  s.  8. 

2.  1806,  c.  693,  s.  7.— 1827,  c.  14.— 1790,  c.  318,  s.  1.— Amended. 

3.  1809,  c.  764. 

4.  1777,  c.  115,  s.  62.— 1816,  c.  901,  s.  1.-1822,  c.  1149,  s.  1. 


CHAPTER  8. 
ATTORNEYS    AT    L.A^W. 


AN  ACT  CONCERNING  ATTORNEYS  AT  LAW. 


Section 

1.  Attorneys  at   law  to   be  licensed  by 

the  judges  of  the  supreme  court. 

2.  Persons  coming  from  other  States  to 

be  licensed  where. 
S.  Attorneys  to  take  oaths, 


Section 

4.  Attorneys  to   pay  a  tax  before  being 

permitted  to  practise. 

5.  Attorney    to  pay   costs   where   any 

suit  is  dismissed  on  account  of  his 
failing  to  file  a  declaration. 


Chap.  VIIL]         attorneys  at  law.  81 


Section 

6.  Attorney  griilty  of  neglect  or   fraud 

to  pa}''  double  damages. 

7.  Attorneys   not  to   take  greater  fees 

than  those  allowed  by  law. 


Section 

as  attorney  m  the   county  court  of 
his  county. 
9.  Attorney    upon  being    appointed   a 
justice   must  resign   his   claim  to 


•8.  No  justice  of  the  peace   to  practise    1  practise  in  the  county  court. 

1.  Be  it  enacted  by  the  GeneralJlssembly  of  the  State  of  JVorth 
Carolina.)  and  it   is  hereby  enacted  by  the    authority  of  the  same, 

That  persons,  who  may  apply  for  admission  to  practise  as  attorneys  Attorneys  at 
in  any  court,  shall   undergo    an  examination  before  two  or   more  ^^^  ^°,  \^  \ 

r    T       ■     J  r    1  1  ••  -r  censed  by  the 

ol  the  judges  oi  the  supreme  court,  and  on    receivmg  certihcates  judges  of  the 
from  said  judges  of  their   competent  law   knowledge  and  upright  supreme  court. 
character,  shall  be  admitted  as  attorneys  in  the  courts  specified  in 
such  certificates. 

2.  No  person  coming   into    this  State  from   any  other  state  or  Persons  coming 
from  any  foreign  country,  with  an  intention  to    practise  the   law,  states  to  be  li- 
shall  by  the  said  judges  be  admitted    to  practise    as  an    attorney,  censed  when, 
unless  he  shall  have  previously    resided  one  year  in  this    State,  or 

unless  such  person  shall  produce  to  the  said  judges,  a  testimonial 
from  the  chief  magistrate  of  such  state  or  country,  or  from  some 
other  competent  authority,  that  he  is  of  an  unexceptionable  moral 
character. 

3.  All  attorneys  before  they  shall  be  admitted  to  practise  in  any  Attorneys  to 
court,  shall,  in  open  court  before  the  judges  thereof,  take  the  oath  ^^^^  °^^^^- 
prescribed  for  attorneys,  and  also   the  oaths  of  allegiance    to  this 

State,  and   to  support  the   constitution  of  the  United  States,  pre- 
scribed for  all  public  officers,  and,  upon  such  qualification  had,  and 
oath  taken,  may  act  as  attorneys  during  their  good  behavior. 
.M*"^.  No  attorney  shall  be  permitted  to  practise  in  any   court  of  Attorneys  to 
this  State  until  he  shall  produce  the    receipt  of  the   proper    clerk,  ^oj^  ^ein^  ptr- 
shewing  that  he  had  paid  the  tax  for  his  license  imposed  by  law.    mittedto  prac- 

5.  When  a  plaintiff  in  anv  suit,  in  any  of  the  courts  of  this  State,  ]^^' 

*'  •       .  Attorn6y  to 

shall  be  compelled  to  pay  the  costs  of  such   suit,  in  consequence  pay  costs 

of  a  failure  on  the  part  of  his  attorney  to   file  his   declaration  in  yheie  any  suit 

IS  QisnussGo.  on, 

proper  time,  he  may  warrant  such  attorney  for  all  the  costs  by  him  account  of  his 
so  paid,  and  the  receipt  of  the  clerk  shall  and  may  be  given  in  ^^i^}'^?  ^o  file  a 
evidence  in  support  of  such  claim,  and  the  justice,  before  whom 
such  warrant  shall  be  tried,  may  give  judgment  and  issue  execution 
thereon,  and  such  attorney  shall  be  further  liable  to  the  action  of 
such  plaintiff  for  such  damages  as  he  may  have  sustained  in  con- 
sequence of  such  declaration  not  having  been  filed  as  aforesaid. 

6.  If  any  practising  attorney  in  any  court  of  record  in  this  State  Attorney  guil- 
shall  neglect  to  perform  his  duty  in  any  action  in  which  he  shall  be  ^^^^^  to^my  °*^ 
retained  or  commit  any  fraudulent  practice,  such  attorney  shall  be  double  dam- 
liable  to  an  action  on  the   case  at  common  law,  in  the   superior  or  ^^^^' 
county  courts  of  this  State,  to  the  party  injured,  and  on  the  verdict 

1.  1818,  c.  963,  s.  3. 

2.  1777,  c.  115,  s.  8. 

3.  1777,  c.  115,  s.  8. 

4.  180G,  c.  698. 

5.  17S6,  c.  253,  s.  6.  - 

6.  1743,  c.  37. 

VOL.  I.  11 


82 


AUCTIONS  AND  AUCTIONEERS.    [ChAP.  IX. 


allowed  by 
law 


passing  against  him,  judgment  shall  be  given  by  the  said  court  for 
the  plaintiff  to  recover  double  damages  with  costs  of  suit. 
Attorneys  not       7^   jf  any  attorney  shall  presume  to  ask,  take  or  receive,  directly 

to  t3,iiG    *-T*68.XGr  •/  •/  1  '  ^  J 

fees  than  those  or  indirectly,  any  other  or  greater  fees,  than  he  is  by  law  entitled 
to  in  civil  cases,  it  shall  be  deemed  in  such  attorney  a  misdemeanor 
in  his  office  or  profession  of  attorney,  and  such  malpractice  being 
made  known  to  any  of  the  courts  within  this  State,  such  courts  are 
hereby  required  to  direct  the  attorney  general  or  sohcitors  on  be- 
half of  the  State  to  carry  on  a  prosecution  by  indictment  for  such 
malpractice,  and  if  any  such  attorney  shall  be  thereupon  convicted, 
by  the  verdict  of  a  jury,  of  taking  any  greater  fees  than  by  law 
allowed,  he  shall,  by  the  court  in  which  such  conviction  shall  be 
had,  be  thenceforth  dismissed  from  his  practice  as  an  attorney  for 
one  year  in  every  court  of  law  and  equity  within  this  State. 

8.  No  court  of  pleas  and  quarter  sessions  in  this  State  shall 
admit  to  the  bar  of  the  court,  as  practising  attorney,  any  person 
who  holds  the  office  of  a  justice  of  the  peace  in  said  county,  until 

county  court  of  }^g  gj^^j]^  g^  ^  tender  to  the  court  a  resignation  of  his  said  office  to 

his  county.         ,       ,        i  •  ,  •        i  i  1       • 

be  by  the  said  court  transmitted  to  the  competent  authority. 
Attorney  upon  9.  Whenever  any  practising  attorney  in  a  court  of  pleas  and 
ed  a^ustice^^"  quarter  sessions  shall  accept  of  the  appointment  of  a  justice  of 
must  resign  the  peace  in  the  county,  wherein  he  so  practises,  he  shall,  before  he 
is  permitted  to  take  the  oath  prescribed  for  a  justice  of  the  peace, 
cause  to  be  entered  on  the  records  of  said  court  a  resignation  of 
all  claim  to  practise  therein  as  an  attorney,  so  long  as  he  shall 
keep  the  office  aforesaid,  and  during  the  time  he  shall  keep  the 
said  office,  he  shall  not  be  heard  or  received  as  an  attorney  of 
said  court. 


No  justice  of 
the  peace  to 
practise  as   at 
torney  in  the 


his  claim  to 
practise  in  the 
county  court. 


7.  1786,  c.  253,  s.  5. 

8.  1808,  c.  747,  s.  1. 

9.  1803,  C.  747,  s.  2. 


CHAPTER  9. 


AUCTIONS  AND  AUCTIONEERS. 


AN  ACT  CONCERNING  AUCTIONS  AND  AUCTIONEERS. 


Section 

1.  A  tax  of  two  and  a  half  per  cent,  to 

be  paid  on  goods  sold  at  auction — 
What  sales  shall  be  exempt  from 
the  tax. 

2.  V^hat  articles  shall  be  exempt  from 

the  tax  on  auctions. 

3.  Tax  to  be  paid  on  articles  sold  by 


Section 

auctioneers  at  private  sale  in  cer- 
tain cases. 

4.  When  and    how  auctioneers  to  be 

appointed — Bond  to  be  given  and 
duties  to  be  performed. 

5.  Commissioners  of  certain  towns  to 

appoint  auctioneers. 


Chap.  IX.]     auctions  and  auctioneers. 


83 


Section 

6.  Commissioners  of  towns  to  supply 

vacancies. 

7.  Auctioneers  to  pay  one  per  cent,  out 

of  the  two  and  a  half  per  cent,  to 
the  commissioners  of  towns. 

8.  Clerks  of  the  county  courts  to  make 

return  to  the  comptroller  of  auction 
duties,  and  also  of  the  names  of  the 
auctioneers    and    their    sureties^ — 


Section 

Duty  of  the  comptroller  and  of  the 
treasurer. 

9.  Penalty  on  auctioneers  for  failing  to 

make  returns  to  the  clerk,  and  on 
clerks  for  failing  to  make  returns 
to  the  comptroller. 

10.  Penalty  for   acting  as  auctioneers 
without  appointment — Proviso. 

1 1 .  Auctioneers'  compensation. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted  by  the   authority  of  the  same, 

That  there  shall  be  levied,   collected  and  paid  for  the  use  of  the  A  tax  of  two 
State  upon  all  sales  by  way  of  auction,  as  hereinafter  described,  p^f  cg^t  ^^'j^g 
which  shall  be   made  within  this  State,  a  rate  and  duty  of  two  paid  on  goods 
dollars  and  fifty  cents  for  every  hundred   dollars  of  the  purchase         ''^"^^^°'^" 
money  arising  by  sale  at  auction  of  goods,  wares  and  merchandise, 
and  the  same  rate  for  any  greater  or  less  sum,  except  as  herein- 
after excepted,  the  respective  rates  and  duties  to  be  paid  by  the 
auctioneer,   or  person  making   such    sale  at  auction,   out  of  the 
money  arising  from   each  and  every  sale  :  Provided  always,  that  what  sales 
nothing  in  this  act  contained  shall  extend  to  any  sale  by  auction  of  empt  from  the 
goods,  w^ares  and  merchandise,  made  pursuant  to  or  in  execution  tax. 
of  any  rule,  order,  decree,  sentence  or  judgment  of  any  court  of 
the  United  States,  or  of  any  court  of  this  State,   or  made  in  con- 
sequence  of  any  general  assignment  of  property  and  effects  for 
the  benefit  of  creditors,   or  made  by  or  on  behalf  of  executors, 
administrators,  or  guardians,  or  made  pursuant  to  the  direction  of 
any  law  of  this  State,  or  of  the  United  States,   touching  the  col- 
lection of  any  tax  or  duty,  or  of  any  wrecked  goods. 

2.  The  provisions  of  the  preceding  section  shall  not  extend  to  What  articles 
any  article,   the  product  of  the  agriculture  of  this    State,   in  its  empt  from  the 
natural  or  unmanufactured  state,  nor  to  any  species  of  stock  or  tax  on  auctions, 
of  domestic  animals,  nor  to  any  articles  of  household  furniture,  or 

farming  utensils,  which  have  been  in  use,  but  they  shall  extend 
only  to  such  articles  of  goods,  wares  and  merchandise  as  ai'e  the 
ordinary  subject  of  traffic  and  sale  by  merchants  and  traders. 

3.  The  duty  of  two  and  a  half  per  cent,  imposed  by  the  first  Tax  to  be  paid 
section  on  goods,  wares  and  merchandise  sold  at  auction,  shall  be  {^y  auctioneers 
levied,  collected  and  paid  on  all  goods,  wares   and  merchandise,  at  private  sale 
sold  by  any  auctioneer,  whether  by  public  or  private  sale  :   Pro-^^a-ses.^^^ 
vided  the  price  at  which  such   goods,  wares   and  merchandise  are 

sold,  is  fixed  or  agreed  upon,  or  governed  by  the  previous  sale  at 
auction  of  any  goods,  wares  or  merchandise  of  the  same  kind. 

4.  The  several  courts  of  pleas  and  quarter  sessions  in  this  State  When  and  how 
shall  annually,  at  the  first  term  after  the  first  day  of  April,  in  each  be  appointed, 
and    every   county,    (a  majority  of  the   justices  being  present,) 

appoint  not  more  than  three  persons  to   exercise  the  business  or 

1.  IS18,  c.  966,  s.  1. 

2.  1S19,  c.  993. 

3.  1824,  c.  1249,  s.  1. 

4.  1618,  C.  966,  s.  2.— 1824,  c.  1249,  s.  2.--1S33,  c.  28. 


84  AUCTIONS  AND  AUCTIONEEES.    [ChAP.  IX. 

trade  of  auctioneer  in  their  respective  counties  for  the  term  of 
one  year,  each  of  such  persons  giving  bond  to  the  State  of  North 
enanddutifrCarohna  with  one  or  more  securities  to  the  satisfaction  of  the 
to  be  perform-  court,  in  the  sum  of  two  thousand  dollars,  with  condition  that  he 
will  on  the  first  day  of  July,  October,  January  and  April,  in  each 
year  while  he  shall  continue  to  exercise  the  said  trade  or  business, 
render  to  the  clerk  of  his  county  a  true  and  pai'ticular  account  in 
writing  of  the  moneys  or  sums  for  which  any  goods,  wares,  or 
merchandise,  made  liable  to  duty  by  law,  have  been  sold  at  every 
sale  at  auction,  by  him  made,  and  at  every  private  sale,  wherein 
the  price  of  the  goods,  wares  and  merchandise  thus  sold  at  pri- 
vate sale,  was  fixed  or  agreed  upon,  or  governed  by  any  previous 
sale  at  auction  of  any  goods,  wares  and  merchandise  of  the  same 
kind  ;  that  the  account  thus  rendered  shall  contain  a  statement  of 
the  gross  amount  of  sales  by  him  made,  for  each  particular  person 
or  company  at  any  one  time,  the  date  of  each  sale,  the  names  of 
the  owner  or  owners  of  the  goods,  wares  and  merchandise  so 
sold,  and  the  amount  of  tax  due  thereon,  and  also  shall  pay  such 
sums  of  money  as  shall  be  due  to  the  State,  upon  the  said  sales, 
which  sums  he  is  hereby  authorized  and  directed  to  retain  out  of 
the  produce  of  such  sales  made  as  aforesaid.  The  said  auctioneer, 
at  rendering  his  account  to  the  clerks  of  the  courts  as  herein 
required,  shall  take  and  subscribe  an  oath  on  said  account,  that  the 
same  is  true  to  the  best  of  his  knowledge  and  belief,  and  shall 
annually,  in  the  month  of  October,  pay  to  the  public  treasurer  the 
amount  of  duties  upon  sales  at  auction,  and  upon  such  private 
sales  as  are  specified  in  the  third  section,  by  him  made  in  the  pre- 
ceding year,  and  shall  be  entitled  to  retain  a  commission  of  five 
per  cent,  upon  the  amount  thereof  for  his  trouble  in  and  about  the 
same. 
Commissioners  5.  The  commissioners  of  the  several  towns  of  Fayetteville, 
towns  10%-  Wilmington,  Newborn,  Edenton,  Elizabeth  city,  Hahfax,  and  the 
point  auction-  city  of  Raleigh,  shall  have  full  power  to  appoint  not  more  than 
'^^^^'  three  auctioneers  for  their  respective  towns,  which  auctioneers 

shall  be  appointed  annually  on  the  first  Monday  in  April,  in  each 
and  every  year,  and  who  shall  give  bond  to  be  approved  by  the 
court  of  pleas  and  quarter  sessions  of  the  county  and  otherwise  be 
subject  to  the  rules  and  regulations  prescribed  for  auctioneers  in 
the  preceding  sections  of  this  act. 
Commissioners  6.  Whenever  any  auctioneer  for  any  of  the  said  towns  shall  die, 
of  towns  to      remove  from  said  town,  or  resign  his  appointment  as  auctioneer, 

Sllpplv  V3,C3.n-    ■  ... 

cies.  it  shall  be  lawful  for  the  commissioners  of  said  town  to  supply  any 

vacancy  occurring  as  aforesaid  by  a  new  appointment,  which  shall 
continue  in  force  until  the  next  annual  appointment  of  auctioneers. 
And  it  shall  be  the  duty  of  the  said  commissioners  to  take  from 
the  auctioneer  so  appointed  the  usual  bond,  and  to  return  the 
same  to  the  court  of  pleas  and  quarter  sessions,  which  shall  be 
held  next  after  such  appointment,  for  the  counties  in  which  the 
said  towns  are  respectively  situated. 

5.  1820,  c.  1065. 

6.  1S27,  c.  26,  s.  1  and  2. 


Chap.  IX.]     auctions  and  auctioneers.  85 

7.  The  auctioneers  in  each  and  every  incorporated  town  in  this  Auctioneers  to 
State  shall  pay  to  the  commissioners  of  the  town,  whereof  he  is  ccIt°out^oT  the 
an  auctioneer,    one  per   centum  out  of  the  two  and  a  half  per  two  and  one 
centum,  which  is  by  the  preceding  sections  of  this  act  directed  to  to  the'commis- 
be  paid  to  the  State,  as  a  duty  on  all  goods,  wares  and  merchan-  sioners  of 
dise  sold  by  them  at  auction,   and   at    each  private   sale,    as  is^°'^"^- 
specified  in  the  third  section.     And  the  said  auctioneers  shall  be 
governed   by  the   same  rules,   regulations  and   provisions   and  re- 
strictions to  the  said  commissioners  for  their  payment,  as  they  are 

by  the  above  provisions  to  the  State. 

8.  The  clerks  of  the  several  courts  of  pleas  and  quarter  ses-  clerks  of  the 
sions    shall,    annually  in  the  month  of  October,  transmit  to  the  ™™^y '^°^^^^ 

to  ni3,K6  r6turn. 

comptroller  of  this  State  an   abstract  of  the  accounts  returned  to  to  the  comp- 
his  office  by  the   several  auctioneers  in  the  preceding  year,  also  tfoller  of  auc- 

*  *  tlOn  ClUtlBS   £1110 

the  names  of  all  the  auctioneers  appointed  according  to  the  pro-  also  of  the 
visions    of   the  fourth  and    fifth  sections  of  this   act  with   their  "'^™?^  °f '-^^  , 

T      T  -r-  ,  •  auctioneers  and 

respective    securities  ;  and  also,    it    no  such  appointments   were  their  sureties, 
made,  the  clerks  aforesaid  shall  transmit  a  statement  of  that  fact ; 
and  it  shall  be  the  duty  of  the  comptroller  to   charge  each  auc- Duty  of  the 
tioneer  for  the  amount  of  the  duty  due  to  the   State  upon  such  coinptroller ; 

,         ,  .  •'     .      ,  IT  •  ^nd  01  the 

accounts  by  the  auctioneers  respectively,  and  ii  any  auctioneer  treasurer, 
shall  fail  to  pay  the  public  treasurer,  at  the  time  herein  before 
appointed,  the  sums  due  from  him  to  the  State  upon  his  accounts 
as  aforesaid,  the  treasurer  is  required  to  move  for,  and  the  courts 
of  this  State  are  authorized  and  required  to  render  judgment 
against  such  delinquent  auctioneer  and  his  securities,  as  by  law 
judgment  may  be  had  against  delinquent  revenue  officers. 

9.  If  any  auctioneer  shall  fail  to  render  his  accounts  to  the  clerk  Penalty  on 

of  the  court  of  his  county,  he  shall  forfeit  and  pay  the  sum  of  fifty  f;^Un°"to  make 
dollars  for  each   neglect,    and  if  any  clerk  of  any  court  of  pleas  returns  to  the 
and  quarter  sessions  shall    fail  to  transmit  to  the   comptroller  the  cierks  for  fa°iL- 
statement  required  by  the  last  section,  he  shall  forfeit  and  pay  the  ing  to  make  re- 
sum  of  one  hundred  dollars  for  each  and  every  failure,  which  for-  comptroller, 
feitures  of  the  auctioneers   and  clerks  shall  be   recovered  by  the 
treasurer  for  the  use  of  the  State,  upon  motion  as  in   the   pre- 
ceding section. 

10.  No  person  shall  exercise  the  trade  or  business  of  an  auc- Penalty  for 
tioneer,  by  selling  any  goods,  wares  and  merchandise  whatsoever  ^j^^ef^g^^^t^' 
by  auction,  or  any  other  mode  of  sale,  whereby  the  best  or  high-  out  appoiut- 
est  bidder  is  deemed  to  be  the  purchaser,  unless  such  person  shall  "^'^"'" 

be  appointed  an  auctioneer  pursuant  to  the  provisions  of  this  act, 
on  pain  of  forfeiting  for  every  such  sale  at  auction  the  sum  of  two 
hundred  dollars  :  Provided,  however^  that  nothing  herein  contained  Proviso, 
shall  be  construed  to  require  sales  to  be  made  by  auctioneers  of 
any  estate,  goods,  chattels,  or  other  thing,  which,  by  the  provisions 
of  this  act,  are  not  made  liable  to  duty,  or  are  exempted  from 
duty. 

7.  1824,  c.  1249,  s.  3  and  4. 

8.  1818,  c.  906,  s.  3. 

9.  Amendment. 

10.  1818,  c.  966,  s.  4. 


86 


BAIL    IN    CIVIL    CASES. 


[Chap.  X. 


Auctioneers' 
compensation. 


11.  The  auctioneers.,  appointed  under  the  provisions  of  this  act, 
shall  be  entitled  to  ask  and  receive  from  the  persons  for  whom 
they  make  sales  at  auction,  as  may  be  agreed  on  between  them, 
not  exceeding  two  and  a  half  per  cent,  on  the  amount  of  such 
sales. 


11.   1818,  c.  966,  s.  5. 


Note.  — References  to  Adjudged  Cases. 
Sect.  4.  Commissioners  of  Raleigh  vs.  Holloway,  3  Dev.  234. 


CHAPTER   10. 


BAII^    IN    CIVIL    CASES. 


AN  ACT  CONCERNING  BAIL  IN  CIVIL  CASES. 


Section 

1 .  How  bail  bond  to  be  taken  and  re- 

turned— When  the  sheriff  shall  be 
special  bail. 

2.  Bail  bond  to  be  assigned  to  the  plain- 

tiff—If not  assigned  sheriff  to  be 
special  bail. 

3.  When  and  how  the  bail  may  be  pro- 

ceeded against. 

4.  Bail  may  arrest  and  surrender  princi- 

pal. 


Section 

5.  Persons  surrendered  may  give  other 

bail. 

6.  Issue  by  the  bail  to  be  tried  the  first 

term — Non  est , factum  to  be  plead- 
ed only  on  oath. 
8.  Costs  to  be  paid  by  the  bail  in  certain 
cases. 


/'tf^^- 


tl.V 


returned. 


1 .   B  E  lY  enacted  hy  the  General  Assembly  of  the  State  of  JYorih 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
H     b  "1  bond  That  when  any  writ  shall  issue  from  any  of  the  superior  courts  of 
to  be  taken  and  law,  or  from  the  courts  of  equity  in  cases  where  bail  may  be  re- 
quired, or  from  any  of  the  county  courts  of  pleas  and  quarter  ses- 
sions, whereby  any  sheriff  or  other  officer  shall  be  commanded  to 
take  the  body  of  any  person  or  persons,  to  answer  to  any  action, 
bill  or  petition  in  any  of  the  said  courts,  such  sheriff  (or  other 
officer)  shall  take  bond  with  sufficient  securities  in  double  the  sum 
for  which  such  person  or  persons  shall  be  held  in  arrest  (executors 
and  administrators  excepted,)  and  shall  return  such  bond  with  the 
When  the        Writ,  and  in  case  the  sherifi'  or  other  officer  shall  fail  or  neglect  to 
sMcifihaU^  ^^take  such  bail,  or  the  bail  returned  be  held  insufficient  on   excep- 
tion taken  and  entered  the  same  term,  to  which  such  process  shall 
be  returnable,  the  sheriff  or  other  officer,  having  due  notice  thereof, 


special  bail. 


1.   1777,0.  115,  s.  16,  69.-1782,  c.  177, s.  3.— 1831,  c.  14.  s.  1. 


Chap.  X.]  bail  in  civil  cases.  87 

shall  be  deemed  and  stand  as   special  bail,  and  the  plaintiff  may 
proceed  to  judgment  according  to  the  rules  hereinafter  prescribed. 

2.  All  bail  bonds,   returned  to  any  of  the  courts  named  above,  gaii  bond  to  be 
shall  be  assigned  by  the  sheriif  or  coroner  returning  the  same  by  assi^:^  to  the 
an  endorsement  thereon,  in  the  following  form,  to  wit  :  I,  A.  B.  ^"^'"^^ 
sheriff  or  coroner  (as  the  case  may  be)  of  county,  do 

hereby  assign  the  within  obligation  to   CD.  the  plaintiff  tnerein 

named,  his  executors  and  administrators,  to  be  sued  for  according 

to  the  statute  in  such  cases  made  and  provided.     In  witness  where-  . 

of,  I  have  hereunto  set  my  hand  and  seal  the  day  of 

in  the  year  of  our  Lord  .     And  every  sheriff  or  other  If  not  assigned, 

officer,  failing  to  make  such  assignment,   shall  be  deemed,  held®  g^i^^^^^if. 

and  taken  as  special  bail  in  the  same  manner  as  if  no  bail  bond  had 

been  returned. 

3.  All  bail,  taken  according  to  the  directions  above  prescribed,  ^^en  and  how 
shall  be  deemed,  held  and  taken  as  special  bail,  and  as  such  liable  proceeded 

to  the  recovery  of  the  plaintiff,  but  the  plaintiff,  after  final  jadg-^s^i^^^'^- 
ment,  shall  not  take  out  execution  against  such  bail,  until  an  exe- 
cution be  first  returned  that  the  defendant  is  not  to  be  found  in  his 
proper  county,  and  until  a  scire  facias  hath  been  made  known  to 
the  bail,  which  scire  facias  shall  not  issue  till  such  execution  shall 
have  been  so  returned,  and  after  return  of  such  execution  against  ' 
such  principal,  and  scire  facias  against  the  bail,  execution  may  is- 
sue against  the  principal  and  securities  or  any  of  them,  or  any  of 
their  estates,  unless  the  bail  shall  surrender  the  principal  before 
the  return  of  the  first  scire  facias^  or  shall  appear  and  plead  upon 
the  return  thereof. 

4.  The  bail  shall  have  liberty,  before  final  judgment  obtained  Bail  may  arrest 
against  him,  to  surrender  to  the  court,  from  which  tlie  process  is-  pri^cipah'^  " 
sued,  or  to  the  sheriff  returning  such  process  during  the  sitting 

of  such  court,  or  to  the  sheriff  in  the  recess  of  such  court,  the 
principal  in  discharge  of  himself ;  and  such  bail  shall,  at  any  time 
before  such  judgment  had,  have  full  power  and  authority  to  arrest 
the  body  of  his  principal,  and  secure  him  until  he  shall  have  an 
opportunity  to  surrender  him  to  the  sheriff  who  made  the  arrest, 
or  the  court  to  which  the  process  was  returnable,  and  such  sheriff 
is  hereby  required  to  receive  such  surrender,  and  hold  the  body 
of  the  defendant  in  custody,  as  if  bail  had  never  been  given. 

5.  Any  person  surrendered  to  the  sheriff  after  the  return  court.  Person  surren- 
or  who  shall  be  committed  to   the   custody  of  the  sheriff  upon  a  ^^^jj^^  iJ^^^  ^^^® 
surrender  in  court,  shall  have  liberty,  at  any  time  before  final  judg- 
ment rendered  against  him,  to  give  other  bail,  and  it  is  hereby  de- 
clared to  be  the  duty  of  the  said  sheriff  to  take  the  same  and  re- 
turn the  bail  bond  to  the  succeeding  court,  and  in  case  the  sheriff 

shall  release  such  person  without  bail,  or  the  bail  returned  be  held 
insufficient  on  exceptions  taken  and  allowed  the  same  term  to 
which  such  bail  bond  shall  be  returned,  the  sheriff,  having  due  no- 
tice thereof,  shall  be  deemed  and  taken  as  special  bail. 

2.  1777,  C.  115,  S.  17. 

3.  1777,  C.  115,  s.  19. 

4.  1777,  C.  115,  S.  20. 

5.  1827,  c.  40. 


88  BAIL    IN    CIVIL    CASES.  [ChaP.  X. 

Issue  by  the  Q.  When  any  scire  facias  shall  by  the  proper  officer  be  return- 

the  first 'term.   ^^  to  have  been  made  known  to  the  bail,  and  they  in  consequence 
thereof  shall  appear,  they  shall  be   obhged  to  plead  and  the  issue 
shall  be  tried  the  same  term,  to  which  the  process  shall  be  return- 
ed, unless  sufficient  cause  be  shown  to  the  court  to  the  contrary, 
Non  est  facturn  ]-,yj-  ^}-jg  \^q^\  gj-j^ij  jjq^  -j^q  permitted  to  plead  non  est  factum,  unless 

to     DG      "DIGS-CIGQ,  %J  ' 

only  on  oath,    they  first  file  an  affidavit  of  the  truth  of  their  plea. 
When ijrincipal      7.  When   any  sheriff  shall  return  on   a  scire  facias  to  him  di- 
oVoS^eTpro-   rected,  that  the  principal  is  imprisoned  by  virtue  of  any  process  civil 
cess,  he  maybe  or  Criminal,  the  court,  to  which  such  scire  facias  is  returnable,  shall, 
retamed.  ^^  motion  of  the  plaintiff  or  bail,  order  and  direct  that  such  prin- 

cipal be  retained  where  he  shall  be  a  prisoner,  until  the  plaintiff's 
judgment  and  costs  shall  be  paid,  or  he  be  otherwise  discharged 
by  due  course  of  law,  a  copy  of  which  order  being  served  on  the 
keeper  of  such  prison,  before  such  prisoner's  releasement,  shall 
be  a  sufficient  authority  for  him  to  retain  such  prisoner  until  such 
order  be  comphed  with,  and  shall  be  deemed  a  surrender  of  the 
principal,  and  a  discharge  of  the  bail. 
Costs  to  be  paid  8.  Whenever  a  scire  facias  shall  issue  against  any  person,  as 
by  the  bail  m  ^jjg  bail  of  any  other  person,  and  said  bail  shall  not,  at  or  before 

certam  cases.       ,  ~    •;  ^  ,  .    ,  ....  ^ 

the  term  ot  the  court,  at  which  said  bail  is  bound  to  appear,  or 
■'W^  ought  to  plead,  be  discharged  from  his  hability  as  bail  by  the  death 
or  surrender  of  his  principal  or  otherwise,  then  and  in  that  case, 
the  bail  shall  be  liable  for  all  the  costs  that  may  accrue  on  said 
scire  facias,  notwithstanding  said  bail  may  be  afterwards  discharg- 
ed, as  such,  by  the  death  or  surrender  of  the  principal  or  other- 
wise. 

6.  1777,  c.  115,8.  21. 

7.  1777,  c.  115,  S.  22. 

8.  1327,  c.  15. 


Note.  —  References  to  Adjudged  Cases. 

Sect.  1.  Swepson  vs.  Whitaker,  1  Hay,  224.  Luton  vs.  the  sheriff  of  Wake,  ib. 
455.  Bryan -BS.  Bradley.  Tayl.  77.  Handy  t's.  Richardson,  2  Hay,  133.  Rhodes  i;s. 
Vaughn,  2  Hawks,  167.  Governor  vs.  Jones,  ib.  359.  Hart  vs.  Lanier,  3  Hawks,  244. 
Arrenton  vs.  Jordan,  4  Hawks,  98.    Gray  vs.  Hoover,  4  Dev.  475. 

Sect.  3.  Hunter  vs.  Hill,  2  Hay,  223.  Benton  I's.  Duffey,  Conf.  98.  Arrington 
vs.  Jordan,  4  Hawks,  98.     Finley  vs.  Smith,  3  Dev.  247. 

Sect.  4.  Davison  vs.  Mull,  1  Hay,  364.  Peace  vs.  Person,  1  Murph.  188.  Dick  vs. 
Stoker,  1  Dev.  91.  Granberry  »s.  Pool,  3  Dev.  155.  Huggins  fs.  Fonville.  ib.  392. 
Moody  vs.  Stockton,  ib.  431. 


Chap.  XL] 


BANK    NOTES. 


89 


CHAPTER   11. 


BANK     NOTE8 


AN  ACT  TO  PROHIBIT  THE  CIRCULATION  OF  BANK  NOTES  UNDER 

FIVE  DOLLARS. 


Section 

1.  Notes  of  the  banks  of  other  states, 
&c.  under  five  dollars  not  to  be  cir- 
culated in  this  State. 


Section 
2.  Penalty  for  circulating  such  notes. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  Jforth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  it  shall  not  be  lawful  for  any  person  to  pass,  circulate  or  re- 
ceive in  payment,  within  this  State,  any  bank-note,  bill  or  prom- 
issory note  for  the  payment  of  money,  issued  by  any  state  or 
sovereignty,  or  by  any  body  poHtic  or  corporate,  not  authorized 
to  issue  the  same  in  and  by  any  of  the  laws  and  statutes  of  this 
State,  under  the  denomination  of  five  dollars. 

2.  Any  person  offending  against  any  of  the  provisions  of  the 
preceding  section  shall  forfeit  the  nominal  amount  of  such  bank 
note,  bill  or  promissory  note  with  costs  of  suit,  to  be  recovered 
in  the  name  and  for  the  use  of  any  person  who  shall  sue  for  the 
same,  and  prosecute  such  suit  to  judgment  in  any  jurisdiction  hav- 
ing cognizance  thereof- 

1.  1830,  c.  40,  s.  1. 

2.  1830,  c.  40,  s.  2. 


Notes  of  the 
banks  of  other 
states  &c. 
under  five  dol- 
lars not  to  be 
circulated  in 
this  State. 


Penalty  for 
circulating 
such  notes. 


CHAPTER    12. 


BAST  A  MB    CHIL.DREN 


AN  ACT  CONCERNING  BASTARDY  AND  PRESCRIBING  THE  MODE  OP 
LEGITIMATING  BASTARD  CHILDREN  IN  CERTAIN  CASES. 


Section 

1.  A  single  woman  being  with  child, 
&c.  and  refusing  to  declare  the 
father,  lo  pay  a  fine  and  give  secu- 
rity, &c.— If  she  declare  the  father 
he  shall  give  security  to 
the   order    of  the    court 


on  oath, 
perform 
thereon. 
VOL.    I. 


12 


Section 

2.  Person   charged  to    be  bound   over 

though  the  child  be  not  born. 

3.  Process  to  issue  against  the  person 

charged  and  failing  to  appear. 

4.  Issue  may  be  made  up  by  the  party 

charged   to  try  the  fact— If   issue 
found  against  him  or  if  there  be  no 


90 


BASTARD    CHILDREN.  [ChAP.  XII. 


Section 

issue,  he   is   to  be  bound   for  the 

maintenance  of  the  child  and  pay 

the  costs. 
6 .  Appeal  may  be  taken  by  the  prose  • 

outing  attorney. 
6.  Examination  must   be  within  three 

years  after  birth  of  the  child. 


Section 

7.  Execution  may  issue  for  the  mainte- 

nance of  the  bastard. 

8.  Illegitimate  cliildren   may  be  legiti- 

mated by   the   county  or  superior 
courts. 

9.  Effect  of  such  legitimation. 
10.  Decree  to  be  recorded. 


1.  J^E  it  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
A  single  wo-  That  any  two  justices  of  the  peace,  upon  their  own  knowledge  or 
inan  being  with  information  made  to  them,  that  any  single  woman  within  their  coun- 
refusing  to  de- ty  is  big  with  child  Or  delivered  of  a  child  or  children,  may  cause 
clare  the  father,  such  woman  to  be  brought  before  them  (or  any  other  two  Justices 
and  give  secu-  of  the  county)  and  to  be  examined  upon  oath  concerning  the  father, 
rity,  &c.  and  if  she  shall  refuse  to  declare  the  father  she  shall  pay  a  fine  of 

five  dollars,  and  give  a  bond  payable  to  the  State  of  North  Carolina 
with  sufficient  security  to   keep  such  child  or  children  from  being 
chargeable  to  the  county,  or  shall  be  committed  to  prison  until  she 
shall  declare  the  same  or  pay  the  fine  aforesaid  and  give  bond  with 
If  she  declare  Security  aforesaid  ;  but  in  case  such  woman  shall,  upon  oath  be- 
the  father  on    fore  any  two  justices  aforesaid,  accuse  any  man  of  being  the  father  \ 
give 'security  to  ^^  ^  bastard  child  or  children  begotten  of  her  body,  such  person 
perform  the      SO  accuscd  shall  enter  into   recognizance   with  sufficient  security, 
court  thereou.  'before  the  said  justices,  for  his  appearance  at  the  next  term  of  the 
county  court  and  to  stand  to  and  abide  by  and  perform  whatever 
order  said  court  may   make  for  the  maintenance  of  said  bastard 
children,  and  for   the  indemnification  of  the   county   against   any 
charges  for  the  said  maintenance,  or  shall  be  committed  to  prison 
until  he  enters  into  such  recognizance  aforesaid. 
Person  charp-ed      2.   Any  two  justices  of  the  peace  aforesaid,  at  their  discretion, 
to  be  bound      may  bind  to  the  next  county  court  him  that  is  charged  on  oath  as 
aforesaid  to  have  begotten  a  bastard  child,  which  shall  not  be  then 
born,  and  the  county  court  may  continue  such  person  upon  secu- 
rity until  the  woman  shall  be  delivered,  that  he  may  be  forthcom- 
ing when  the  child  is  born. 
Process  to  is-        2'   Whenever  any  two  justices   of  the  peace   as  aforesaid  shall 
sue  against  the  bind  any  person,  charged  with  being  the  father  of  any  bastard  child, 
and  faihngTo   ^o  the  next  county  court  as  above  prescribed,  and  the  said  person 
appear.  shall  not  appear  agreeably  to  his  said  recognizance,  or  whenever 

any  woman  shall  swear  a  child  to  any  man  in  manner  as  above  pre- 
scribed, and  the  man  to  whom  said  child  is  sworn  shall  abscond  or 
so  conceal  himself  that  the  process  of  said  justices  cannot  be  serv- 
ed on  him.,  then  it  shall  and  may  be  lawful  for  the  county  court,  on 
the  return  of  the  recognizance  or  other  proceedings  from  the  jus- 
tices of  the  peace,  to  order  their  clerk  to  issue  a  capias  or  an  at- 
tachment, at  the  discretion  of  the  said  court,  to  any  county  within 
this  State  against  the  person,  so  charged  with  being  the  father  of 
such  bastard  child  so  absconded,  and  the   same  proceedings  shall 


over  though 
the  child  be 
not  born 


1.  1741,  c.  30,  s.  10.— 1799,  c.  531,  s.  2.- 

2.  1741,  c.  30,  S.  11.— 1799,  c.  531,  s.  2. 

3.  1799,  c.  531,  s.  1. 


-1832,  c.  10.-1832,  c.  17. 


Chap.  XIL]  bastard  children.  91 

be  had  thereon  as  m  other  hke  cases  of  a  capias  or  an  attach- 
ment. 

4.  Whenever  any  man  shall,  in  the  manner   above  prescribed,  issue  may  be 
be  accused  by  any  single  woman  of  being  the  father  of  her  bastard  ^g  pa^X  ^ 
child  or  children,  the  person  so  accused  shall,  upon  the  return  to  charged  to  try 
the  county  court  of  the  recognizance,  capias  or  attachment  as  the  ^  ^  ^^^' 
case  may  be,  be  entitled  to  have  an  issue  made  to  try  up  whether  he 

be  the  father  of  such  child  or  children  ;  upon  the  trial  of  which 
issue,  the  examination  of  the  woman  upon  oath,  taken  before  two 
justices  of  the  peace  in  manner  prescribed  above  and  returned  to 
court,  shall  be  prima  facie  evidence  only  against  the  person  so  ac- 
cused, and  if  the  jury  shall,  upon  the  trial  of  such  issue,  find  that  if  issue  found 
the  person  so  accused  is  the  father  of  such   child  or   children,  he  ?sainst  him  or 

.  II  there  be  no 

shall  stand  charged  with  the  maintenance  thereof  as  the  court  may  issue,  he  is  to 
order,  and  shall  give  bond  payable  to  the  State  of  North  Carolina,  ^'^tiound  for 

...  i"*  ^  _  ^  ^  trie  insuriten- 

with  sufficient  security,  to  perform  said  order  and  to  indemnify  the  ance  of  the 

county,  where   such   child  or  children  shall  be  born,   free   from  ^^^^'^  ^^^  P'^y 

charges  for  his,  her  or  their  maintenance,  and  may  be  committed 

to  prison  until  he  find   securities  for  the  same,  if  such  security  is 

not  by  the  woman  before  given,  and  shall  be  liable  for  the  costs  of 

such  issue  ;  and  the  like  order  may  be  given  by  the  court  and  the 

hke  security  required  from  any  man,  who  stands  charged  as  above 

and  does  not  apply  for  an  issue  to  be  made  up  to  try  the  fact  of 

his  being  the  father   of  such  child  or   children,  and  in   default  of 

such  security  he  may  be  committed  to  prison  as  above  ])rescribed. 

5.  In  the  trial  of  all  issues  under  the  provisions  of  the  last  sec- Appeal  may  be 
tion,  the  officer  prosecuting  on  behalf  of  the  county  shall,  and  he  J^.ose,,ut^cT  at- 
is  hereby  authorized  to  appeal  to  the  superior  court  of  law  in  all  tomey. 
cases  where  he  shall  think  that  justice  has  not  been  obtained. 

6.  All  examinations  upon  oath,  to  accuse  or  charge  any  man  of  ^-"^^"V"^*^?" 
benig  the  latner  oi  a  bastard  child,  shall  be   had   and  taken  vvitmn  in  three  years 
three  years  next  after  the  birth  of  said  child  and  not  after.  f>[^'^'^^^^!i    °^ 

7.  When  any  county   court  within  this  tetate  shall  charge  the  Execution  may 
reputed  father  of  any   bastard  child  with   the   maintenance  of  the  issue  for  the 
same,  in  manner  above  prescribed,  and  the  said  reputed  father  shall  the^baTtard.^  ° 
refuse  or  neglect  to  pay  the  same,  then  it  shall  and  m,ay  be  lawful 

for  such  county  court,  notice  being  served  on  the  defendant  at 
least  ten  days  before  the  sitthig  of  said  court,  or  such  notice  being 
returned  by  the  sherift',  that  the  defendant  is  not  to  be  found,  to  or- 
der an  execution  against  the  goods,  chattels,  lands  and  tenements 
of  the  said  reputed  father,  for  such  sum  as  said  county  court  shall 
adjudge  sufficient  for  the  maintenance  of  said  bastard  child  or  chil- 
dren, provided  that  the  party  aggrieved  by  such  non-payment  shall 
apply  for  the  same. 

8.  The  putative  father  of  any  illegitimate  child  or  children  may  illegitimate 

1        1  ^-  •         ....•','-',  .  •'    children  may 

apply,  by  petition  in  writing,  either  to  the  county  or  superior  court  be  legitimated 
of  the  county,  in  which  such   father   may   reside,  praying  that  the  ^y  the  county 

■'  •'  '  i      J      Lj  Qj.  superior 

courts. 
-1741,  c.  30,  s.  10. 


4. 

1814,  c.  871,  s.  land  2. 

5. 

1814,  c.  871,  s.  3. 

6. 

IS14,  c.  871,  s.  1. 

'/_ 

1799,  c.  531,  s.  3. 

8. 

1829,  c.  19,  s.  1. 

92 


BILLS,    BONDS,    ETC. 


[Chap.  XIII. 


said  child  or  children  be  declared  legitimate,  and  if  it  shall  appear  to 
said  court  from  the  oath  of  said  petitioner  and  such  other  evidence 
as  the  court  may  require,  that  the  petitioner  hath  intermarried  with 
the  mother  of  said  child  or  children,  or  that  the  said  mother  is 
dead,  or  married  to  another,  or  lives  out  of  the  State,  and  that 
such  petitioner  is  reputed  the  father  of  said  child  or  children,  the 
said  court  may  thereupon  declare  and  pronounce  the  said  child  or 
children  legitimated  accordingly. 
Efiects  of  such  9.  The  effect  of  such  legitimation  shall  extend  no  further,  than 
legitimation,  ^q  impose  upon  the  father  all  the  obhgations  which  fathers  owe  to 
their  lawful  children,  and  to  enable  the  child,  thus  legitimated,  to 
inherit,  from  the  father  only,  lands  whereof  the  father  may  die  seiz- 
ed in  fee  simple,  and  to  transmit  the  same  in  the  course  of  des- 
cent, in  the  same  manner  as  though  such  child  had  been  born  in 
lawful  wedlock,  and  also  to  entitle  such  child  to  distribution  of  the 
personal  estate  of  his  or  her  father,  in  the  same  manner  as  though 
he  or  she  had  been  born  in  lawful  wedlock  ;  and  in  case  of  death 
and  intestacy,  the  personal  estate  of  such  child  sliall  be  distribu- 
ted, according  to  the  statute  of  distribution,  among  those  who 
would  be  his  or  her  next  of  kin  in  case  he  or  she  had  been  born 
in  lawful  wedlock. 

10.  It  shall  be  the  duty  of  the  clerk  of  the  court,  where  such 
petition  is  filed  and  such  decree  made,  to  record  the  decree  of  the 
court  thereon ;  and  for  said  services  he  shall  be  entitled  to  receive 
a  fee  of  one  dollar  from  the  petitioner. 

9.   1829,  c.  19,  s,  3,  i  r>  J   0      J  •  g 


Decree  to  be 
recorded. 


10.  1829^  c.  19,  s,  2. 


In 


r 


ff 


Hi 


Note  —  References  to  Adjudged  Cases. 

Sect.  1.  Wilkie  ps.  West,   1  Murph.  319.     State  vs.  Barrow,  3  Murph.  121.     State 
vs.  Petway,  3  Hawks,  623. 

Sect.  7.  McPherson  vs.  McCoy,  2  Dey.  391.   Shaw  vs.  Stewart,  1  Dev.  and  Bat.  412. 


CHAPTER  13. 

BIL.L8,  BONDS  AND  PROMISSORY 

NOTES. 


AN  ACT  CONCERNING  BILLS,  BONDS  AND  PROMISSORY  NOTES. 


Section 

1 .  Promissory  notes  made  negotiable  as 

inland  bills  of  exchange. 

2.  Orders  in  writing  on  third  persons 

good ;  and  the  drawer  or  acceptor 


Section 

liable — But   protest  for  non-accep- 
tance and  notice  necessary  before  a 
suit  will  lie  against  the  drawer. 
3.  All  biUs,  bonds  or  notes  for  money 


Chap.  XIIL]         bills,  bonds,  etc.  -  93 


Section 

8.  Damages   on  protested  bills  of  ex- 


change, what. 
9.  Action  on  protested  bills  of  exchange 
may  be   brought  against   drawers 
and  endorsers  jointly  or  separately. 

10.  In  action  against  drawer  or  endorser, 

protest  of  notary,  &c.,  shall  be  evi- 
dence of  a  demand,  &c. 

11.  Endorsers  of  bills,  bonds  and  prom- 

issory notes   to  be  held  liable  as 
sureties. 


Section 

with  or  without  seal,  &c.,  made 
negotiable — Endorsee  or  assignee 
may  have  an  action  on  the  case  or 
of  debt  in  some  cases  in  his  own 
name. 

4.  Interest  on  bills,  &c.  when  to  accrue. 

5.  Bills,  &c.  payable  on  demand — their 

operation. 

6.  Contracts  for  the  delivery  of  specific 

articles  to  bear  interest. 

7.  Bills  of  exchange  from  what  time  to 

bear  interest.  i      /^^  ^,      C'^  .O. 

1.   Be  if  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina,    and  is  hereby  enacted   by  the   authority   of  the  same, 
That  all  notes   signed  by  any  person   or  persons,  body  politic  or  Promissory 
corporate,  or  by  the  servant  or  agent  of  any  corporation,  banker,  ^otiabk'as^in.-" 
merchant  or  trader,  who  is   or   shall  be   usually  intrusted  to  sign  land  bills  of 
such  promissory  notes  for  them,  whereby  such  person  or  persons,  ^^'^  ^"^^' 
body  politic  or  corporate,  or  the  servant  or  agent  of  any  corpora- 
tion, banker,  merchant  or  trader  shall  promise  to  pay  any  person 
or  persons,  body  politic  or  corporate,  or  the  servant  or  agent  of 
any  corporation,  banker,  merchant  or  trader,  or  order,  the  money 
mentioned  in  such  note,  shall  be  construed  to  be,  by  virtue  thereof, 
due  and  payable  to  such  person  or  persons,  body  politic  or  corpo- 
rate, or  the  servant  or  agent  of  any  corporation,  banker,  merchant 
or  trader,  to  whom  the  same  is  made  payable,  and  also  such  note 
payable  to  such  person  or  persons,   body  pohtic  or  corporate,  or 
the   servant   or  agent   of   any  corporation,   banker,    merchant   or 
trader,  or  order,  may  be  assignable  over  in  hke  manner  as  inland 
bills  of  exchange  are  by  custom  of  merchants  in  England,  and  the 
person  or  persons,  body  politic  or  corporate,    or   the  servant  or 
agent  of  any  corporation,    banker,   merchant,  or  trader,   to  whom 
such  money  is  or  shall  be  payable,  may  maintain  an  action  for  the 
same,  as  they  might  upon  such  bill  of  exchange,  and  the  person  or 
persons,  body  politic  or  corporate,  or  the  servant  or  agent  of  any 
corporation,  banker,  merchant  or  trader,  to  whom  such  note  so 
payable  to  order  is  assigned  or   endorsed,  may  maintain  an  action 
against  the  person   or  persons,   body  politic  or  corporate,  or  the 
servant  or  agent  of  any  corporation,  banker,   merchant  or  trader, 
who  signed  or  shall  sign  such  note,    or  any  who  shall  or  have  en- 
dorsed the  same,  as  in  cases  of  inland  bills  of  exchange,    and  re- 
cover damages  and  costs  of  suit,  and  in  case  of  nonsuit  or  a   ver- 
dict shall  pass  against  the  plaintiff,  the  defendant  shall  recover  costs. 

2.   When  any  person  or  persons  shall,  by  order  in  writing  signed  Orders  in 
by  his  or  their   proper  hand,    direct  the  payment  of  any  sum  or  }"'^'"?°" 

■'  ^  -111  •  r  1  third  persons 

sums  oi  money  in  the  hands   or  possession  oi  any  other  person  or  good;  and  the 
persons   to   the   bearer,    or   any    person   or  persons   whatsoever,  drawer  or  ac- 
the  money  therein  specified  shall  by  virtue  thereof,   be   due  and 
payable  to  such  person  or  persons,  to  whom  the  same   is  drawn 
payable,  and  may  be  put  in  suit  against  the  person  or  persons  who 

1.  1762,  c.  70,  S.  2. 

2.  1762,  c.  70,  S.  3  and  4.  •  -  ■ 


94  BILLS,    BONDS,    ETC.  [ChAP.    XIII. 

shall  draw  the  same,  or  against  the  person  or  persons   on  whom 

the  same  shall  be  drawn,  after   the  acceptance  thereof  by  him  or 

them  by  whom  the  same  shall  be  made  payable,  and  damages  may 

But  protest  for  ^^  recovered.      Provided,  nevertheless,  that  no  person  or  persons 

non-acceptance  whatsoever  shall  prosecute  any  suit  against   any  person  or  persons 

essary  before 'a  who  shall  give  such  Order  for  the  money  therein  mentioned,  before 

suit  will  lie      the  same  shall  have  been  first  protested  for  non-acceptance,  and 

dfawe^r.    ^      notice   given    thereof  to  the  drawer,   before    such   suit   shall  be 

brought,  and  if  any  suit  shall  be  brought  on  any  such  order  before 

notice  and  refusal  to  pay  as  aforesaid,  the  plaintiff  or  plaintiffs  shall 

be  nonsuited  and  pay  costs. 

All  bills  bonds      ^*   AH  bills,  bonds  or  notes  for  money,   as   well  those  with  as 

or  notes  for      tliose  witliout  seal,  thoso   which  are  not   expressed  to  be  payable 

wkhout^seal  ""^^^  Order  or  for  value  received,  as  those  which  are  expressed  to  be 

&c.  made    '    payable  to  order  and  for  value  received,  shall  be  held  and  deemed 

negotia  e.       ^^   ^^  negotiable,    and   all   interest   and  property  therein  shall  be 

transferable  by  endorsement  in   the   same   manner   and   unHer  the 

same  rules,  regulations  and  restrictions  as  notes  called  promissory 

or  negotiable  notes  are  by  the   first  section  of  this  act.     And  the 

Endorsee  or     endorsee  or  assignee  may  have  and  maintain  his  action  on  the  case 

assignee  may     ^        ,  r     t  ^         i  •  i    i  -n     i         i 

have  an  action  lor  the  recovery  01  the  moneys   due   mm  upon  such  bill,  bond  or 
°?i^®.  ■'^^^^' ""^note,  notwithstandine;   any  seal  thereunto  annexed,   in  his  the  said 

01  debt  in  some  '  .     ^     ,    •'  •        i  i 

cases,  in  his  endorsee  s  or  assignees  own  proper  name,  as  suits  have  been 
own  name.  heretofore  had  and  maintained  by  endorsees  or  assignees  of  notes 
called  promissory  or  negotiable  :  Provided,  always,  that  the  en- 
dorsee or  assignee  of  any  bill,  bond  or  note  under  seal  may  have 
and  maintain  an  action  of  debt  on  the  same  in  his  or  her  own  name, 
as  endorsee  or  assignee,  provided  the  original  obhgee  could  have 
maintained  an  action  of  debt  on  the  same  bill,  bond  or  note  with  seal. 
Interest  on  4.   All  bonds,   bills,   notes,   bills  of  exchange,   liquidated   and 

^i^^®'^*^- ■^^^  settled  accounts,  shall  bear  interest  from   the   time   they  become 

to  iiccruG.  '^ 

due,  provided  that   such  liquidated  and  settled  accounts  shall  be 
signed  by  the  debtor,  unless  it  shall  be  specially  expressed  that  in- 
terest is  not  to  accrue  until  a  time  specially  mentioned  in  the  said 
writings  or  securities. 
Bills, &c.  paya-      5.   All  bills,  bonds  or  notes  made  payable  on  demand,  shall  be 
their"  pemlon''^®^^^  ^^^^  deemed  to  be  due  on  demand  made  by  the  creditor,  his 
agent  or  attorney  by  suit  or  request,  and  shall  bear  interest  from 
the  time  of  demand. 
Contracts  for        6.   All  securities  for  the  payment  or  delivery  of  tobacco  and  all 
the  delivery  of  Qjj^gj,  specific  articles,  shall  bear  interest  as  moneyed  contracts  ; 
to  bear  interest,  that  is  to  Say,  the  articles  shall  be  rated  by  a  jury  at  the  time  they 

become  due,  and  interest  be  ])aid  by  the  debtors  accordingly. 
Bills  of  ex-  7,   Bills  of  exchange  which  shall  be    drawn  or  endorsed  in  this 

what'^time  to    State,  and  which  may  be  protested,  shah  carry  interest  not  from 
bear  interest,    the  date  thereof,  but  from  the  time  of  payment  therein  respectively 

mentioned. 
Damages  on         8.   The  damages  on  such  protested   bills   shall  be  as  follows  : 

protested    bills 

of  exchange, 

^hat.  3.   1786,  c.  248,  s.  1.— 1789,  C.  314,  s.  3. 


3. 

1786, 

c.  248,  s.  1. 

—1789 

4. 

17SG, 

c.  248,  s.  3. 

5. 

17SG, 

c,  248,  s.  4. 

6. 

1786, 

c.  246,  s.  5. 

7. 

1823, 

C.  2.  S.  1. 

Chap.  XIII.]         bills,  bonds,  etc.  95 

that  is  to  say,  where  the  bill  shall  be  drawn  or  endorsed  in  this 
State  upon  any  person  or  body  corporate  in  any  other  of  the 
United  States,  or  in  any  of  the  territories  thereof,  excepting  the 
state  of  Louisiana,  six  per  centum  upon  the  principal  sum  ;  where 
such  bill  shall  be  drawn  or  endorsed  as  aforesaid  upon  any  person 
or  body  corporate  in  any  other  state  or  place  in  North  America, 
or  the  islands  thereof,  excepting  the  North  West  Coast  of  Amer- 
ica, or  in  any  of  the  West  Indies  or  Bahama  Islands,  ten  per 
cent,  upon  such  principal  sum  ;  where  such  bill  shall  be  draw^n 
or  endorsed  as  aforesaid  upon  any  person  or  body  corporate  in 
the  island  of  Madeira,  the  Canaries,  the  Azores,  the  Cape  de 
Verd  Islands,    or  in  any  other  state  or  place  in  Europe  or  South  * 

America,  fifteen  per  cent,  on  such  principal  sum,  and  where 
such  bill  shall  be  draw^n  or  endorsed  as  aforesaid  on  any  person  or  '  jf 

body  corporate  in  any  other  part  of  the  world,  twenty  per  cent, 
on  such  principal  sum. 

9.  Any  person  or  persons,   having  a  right  to   demand  any  sum  Actions  on 
of  money  due  upon  a  protested  bill  of  exchange  of  the  description  of  exchange 
aforesaid,  may  commence  and  prosecute   an   action   for  principal,  ^^Y^'^ brought 

1        ■'  1      ,  '■c  -117  aramst  draw- 

mterest,  damages  and  charges  oi  protest  agamst  the  drawers  anders  and  endor- 
endorsers  jointly,  or  against  either  of  them   separately,  and  judg-  '^crs  jointly  or 
ment  shall  and  may  be  given  accordingly. 

10.  In  all  actions  at  lav^  wherein  it  may  be  necessary  to  prove  in  action 

a  demand  upon  or  notice  to  the  drawer  or  endorser  of  a  bill  of  ex-  ^?""|'^  drawer 

^  .  .   ,  ,  .  or  endorser 

change,  or  promissory  note,  or  other  negotiable  security,  or  where  protest  of  no- 
it  may  be  necessary  to   prove  a  demand   upon   the   acceptor   or  i,^"^ '^^j^ ^'^^^l 

•'  •'  i^      .  .  I  .  i-  be  evidence  of 

drawee  oi  a  bilJ  oi  exchange  in  any  action  at  law  against  the  drawer  a  demand  &c. 
or  endorser  of  such  bill  of  exchange,  the  protest  of  a  notary  public 
or,  for  want  of  a  notary  public,  of  a  justice  of  the  peace,  clerk  of 
courts  of  record  and  clerk  and  master,  setting  forth  that  he  has 
made  such  demand  or  given  such  notice,  and  the  manner  in  which 
he  has  done  the  same,  shall  be  prima  facie  evidence  that  such  de- 
mand was  made,  or  notice  given  in  manner  set  forth  in  such 
protest. 

11.  Whenever  any  bill,  bond  or  promissory  note,  made  nego- Endorsers  of 
liable  by  this  act,  shall  be   endorsed,   such  endorsement,  unless  it  tii'ls,  bonds 
be  otherwise  plainly  expressed  therein,   shall  render  the  endorser  noies  to  be 
or  endorsers  liable  as  surety  or  sureties  to  any  holder  of  such  bill,  ^^^^'^  Ji^We  as 
bond,  or  promissory  note,  and  no  demand  on  the  maker  shall  be 
necessary  previous  to  an  action   against  the  endorser.     Provided, 

that  nothing  herein  contained  shall  in  any  respect    apply  to  bills  of 

exchange,  inland  or  foreign.  /»  /  y    IDaiiia^Gf  or  j'sy^J 

8.  1828,  c.  2,  s.  2.— 1741,  c.  31.— 1796,  c.  464,  s.  1  and  2. 

9.  1796,  c.  464,  s.  3. 

10.  1812,  c.  844.— 1819,  c.  1003.— 1826,  c.  15. 

11.  1827,  c.  2. 


Note. — References  to  Adjudged  Cases. 

Sect.  1.  Hodges  vs.  Clinton,  Martin  76. — Jamieson  ts.  Farr,  1  Hay.  182. 

Sect.  2.  vs.  Staunton,  1  Hay.  271. 

Sect.  3.  Tindall  vs.  Johnson,  1  Hay.  372.— Campbell  vs.  Mourfordj  ib.  398. 
Sect.  U.  Hatcher  vs.  McMorine,  4  Dev.  122. 


96 


BOATS    AND    CANOES.  [ChAP.  XIV 


CHAPTER  14. 


BOATS  ANB  CANOES. 


AN   ACT  TO    PREVENT  THE    TAKING    AWAY  BOATS,   CANOES   AND 
PETTIAGUAS  FROM  LANDINGS  OR  ELSEWHERE  WITHOUT  LEAVE. 


\ 


\ 


Section 

1.  Persons   taking  boats,   canoes,  &c. 

without  leave  to  forfeit  two  dollars 
to  the  owner — Provided  that  the 
common  law  right  to  sue  for  dam- 
ages shall  not  be  taken  away. 

2.  Penalty  on  slaves  for  taking  boats, 

&c.    without     leave — Proviso     for 


Section 

cases  where  a  master  orders  his 
slave  to  take  the  boat,  &c. 
3.  Penalty  not  to  extend  *)  persons  who 
shall  press  boats,  &c.  for  the  pub- 
lic service,  or  to  the  proper  owners 
of  such  boats,  &c. 


Persons  taking 
boats,  canoes, 
&c.  without 
leave,  to  for- 
feit two  dollars 
to  the  owner. 


Provided  that 
the  common 
law  right  to 
sue  for  dam- 
ages shall  not 
be  taken  away, 


Penalty  on 
slaves  for  tak- 
ing boats,  &c. 
without  leave. 


Proviso  for 
cases  where  a 
master  orders 
his  slave  to 
take  the  boat, 
&c. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  any  person,  who  shall  take  away  from  any  landing,  or  other 
place  where  the  same  shall  be,  any  boat,  canoe,  or  pettiagua, 
belongbg  to  or  in  the  custody  of  any  person  whatsoever,  without 
the  consent  and  leave  of  the  owner  or  possessor  of  such  boat, 
canoe  or  pettiagua  ;  or  shall  loose,  unmoor,  or  turn  adrift  the 
same,  shall  forfeit  and  pay  to  the  party  who  shall  own,  or  in  whose 
custody  and  possession  such  boat,  canoe  or  pettiagua  was,  the  sum 
of  two  dollars  ;  to  be  recovered  by  warrant  before  any  justice  of 
the  peace  within  the  county  where  the  offence  shall  be  committed  : 
Provided,  that  nothing  herein  contained  shall  debar  any  person 
from  his  action  at  common  law,  for  any  damage  sustained  by  reason 
of  any  boat,  canoe,  or  pettiagua,  to  him  belonging,  being  so  taken 
or  unloosed,  unmoored,  or  turned  adrift  from  any  landing  or  other 
place  where  the  same  was  left,  against  any  person  committing  such 
offence,  notwithstanding  such  person  shall  have  paid  the  penalty 
herein  inflicted. 

2.  If  any  slave  shall  offend  against  the  provisions  of  the  above 
section,  and  be  thereof  convicted,  and  the  master  or  mistress  of 
such  slave  shall  refuse  to  pay  the  said  sum  of  two  dollars,  such 
slave  shall  suffer  correction,  by  whipping,  at  the  discretion  of  the 
magistrate,  not  exceeding  thirtynine  lashes  :  Provided,  that  if  any 
master,  mistress  or  overseer  shall  order  any  slave  belonging  to  him 
or  her,  or  under  his  care,  to  take  from  any  landing  or  other  place, 
any  boat,  canoe,  or  pettiagua,  contrary  to  the  intent  and  meaning 
of  this  act,  such  master,  mistress,  or  overseer  of  such  slave  so 
offending,  shall  be  liable  to  the  forfeitures  and  penalties  of  this 
act,  as  if  he  or  she  in  his  or  her  proper  person  had  done  the 
same. 


1.  1741,  c.  29,  s.  2  and  3. 

2.  1741,  c.  29,  s.  4  and  6. 


Chap.  XV.] 


BOOK    DEBTS. 


97 


3.   The    provisions   of  this   act  shall  not  extend  to  any  person  Penalty  not  to 
who  shall  press  any  boat,  canoe  or  pettiagua  by  public    authority  ;  son^ who  shall 
or  to  any  person  who  shall   seize  his  own  proper  boat,   canoe    or  press  boats,  &c. 
pettiagua,  or   to  any  other   person   or  persons,   being  lawfully  au- service,^or  to 
thorized  so   to   do   by  the  owner,  from   any  place   or  landing,  ortheproper 
from  any  person  in  whose  custody  he  shall  find  the  same,  or  to  any  such  boats,  &c. 
slave   taking  any  boat,    canoe  or   pettiagua  from   any  landing    or 
other  place,  by  order  of  his  or  her  master,   mistress,  or  overseer. 

3.   1741,  c.  29,  s.  5. 


CHAPTER    15. 


/ 


BOOK      BEBTS. 


AN  ACT  ASCERTAINING  THE  MODE  OF  PROVING  BOOK  DEBTS. 


SECTION 

1 .  In  what  cases  and  within  what  time 

book  accounts  may  be  proved  by  the 
plaintiff's  own  oath. 

2.  In.  what  cases  and  within  what  time 

proved  by  the  oath  of  an  adminis- 
trator or  an  executor. 

3.  Copy  of  the  account  to  be  evidence 


Section 

unless  notice  given  to  produce  the 
original. 

4.  Defendant  may  contest  the  evidence. 

5.  No  plaintiff   to   prove   by   his  own 

oath  more  than  sixty  dollars. 

6.  Set-off  may  be  proved  in  like  manner. 


1.   Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  in  any  action  of  debt,  or  upon  the  case,  where  the  plaintift'  shall  in  what  cases 
declare,  upon  an  emissit,  indebitatus  assumsit,  quantum  meruit,  or '^"/^  ^\*^^",     . 
quantum  valebat,  for  goods,  wares  and  merchandise,  by  him  sold  accounts  may 
and  delivered,  or  for  work   done  and   performed,  he  shall  file  his  ^j^  P^/.^'^.^y 
account  with  his  declaration,  and  upon  the  trial  of  the  issue,  or  own  oath, 
executing  a  writ  of  Inquiry  of  damages  in  such  action,  shall  declare 
upon  his  corporal  oath  or  solemn  affirmation,  (as  the  case  maybe,) 
that  the  matter  in  dispute  is  a  book  account,  and  that  he  hath  no 
means  to  prove  the  dehvery  of  such  articles  as  he  shall  then  pro- 
pose to  prove  by  his  own  oath,  or  any  of  them,  but  by  his  book  ; 
in  that  case  such  book  shall  and  may  be   given  in   evidence,  if  he 
shall  make  out  by  his  own  oath  or  affirmation,  that  such  book  doth 
contain  a  true  account  of  all  the  dealings  or  the  last  settlement  of 
accounts  between  them,  and  that  all  the  articles  therein  contained 
and  by  him  so  proved,  were  bona  fide  delivered,  and  that  he  hath 
given  the   defendant  all  just   credits  ;  and  such  book  and  oath  or 
affirmation  shall  be  admitted  and  received  as  good  evidence  for  the 


1.   1756,  c.  57,  s.  2. 
VOL.     I. 


13 


dS  BOOK    DEBTS.  [ChAP.  XV. 

several  articles  so  proved  to  be  delivered,  within  two  years  before 

the  said  action  brought,  but  not  for  any  article  of  a  longer  standing. 

In  what  cases       2.   In  all  trials  at  law,  where  the  cause  of  action  may  be  a  book 

what7ime"       account,  and  to  which  executors  or  administrators  may  be  either 

proved  by  the    plaintiiFs  or  defendants,  and  two  years  from  the  delivery  of  the  ar- 

executor^OT  ad-^^*^^^^  ^'^^^  ^^^  elapsed  previous  to  the  death  of  the  deceased  ;  in 
ministrator.  that  case,  sucli  executor  or  administrator,  on  proving  by  his  own 
oath  or  affirmation,  that  he  found  the  account  so  stated  on  the 
books  of  the  deceased  ;  that  there  are  no  witnesses  to  his  know- 
ledge capable  of  proving  the  delivery  of  the  several  articles  which 
he  shall  propose  to  prove  by  the  said  book,  and  that  he  beheves 
the  same  to  be  just,  and  doth  not  know  of  any  other  or  further 
credit  to  be  given  than  what  is  there  mentioned  ;  shall  be  at  lib- 
\  erty  to  give  such  account  in  evidence,  either  wuen  he  is  plaintiff 

in  the  suit,  or  where  such  account  may  be  pleaded  as  a  set-off 
against  the  demand  of  the  plaintiff,  although  more  than  two  years 
may  have  elapsed  previous  to  the  bringing  of  such  action,  provid- 
ed suit  is  brought  thereon  or  set-off  pleaded,  within  one  year  af- 
ter the  death  of  the  deceased,  or  administration  granted. 
Copy  of  the  3.   A  copy  from  the  book  of  accounts,  proved  in  manner  above 

evidence^uniess  ^J^'scted,  shall  and  may  be  given  in  evidence  in  any  such  action  as 
notice  given  to  aforesaid  and  shall  be   as   available  as  if  such  book  had  been  pro- 
oH^naV^^      duced,  unless   the   defendant  or  his  attorney  shall  give  notice  to 
the  plaintiff  or  his  attorney,  at  the  joining  of  the   issue,  that  he 
will  require  the  book  to  be  produced  at  the  trial,  and  in  that  case 
no  such  copy  shall  be  admitted  or  received  as  evidence. 
Defendant  may      4.   The  defendant  shall  be   at  liberty  to  contest  the  plaintiff's 
idencf  ^  ^^^'  evidence,  and  oppose  the  same  by  other  legal  evidence. 
No  plaintiff  to       5.   No  plaintiff  shall  be  at  liberty  to   prove,  by  his  book  and 
prove  by  his     oath  or  affirmation  as  aforesaid,  on  the  trial  of  any  such  action  as 
than  sixty  dol-  aforementioned,  any  article  or  articles,  the  amount  whereof  shall 
^^^^-  exceed  the  sum  of  sixty  dollars. 

Set-off  may  be       Q    j^j  gjj  cases  where  a  defendant  would  be  allowed  to  plead  a 
manner.  set-off  and  his  set-off  consists  of  a  book  debt  account,  he  shall  be 

allowed  to  prove  the  same  in  the  same  manner  and  to  the  same  ex- 
tent, and  in  all  respects  shall  be  subject  to  the  same  rules,  regu- 
lations and  restrictions  as  above  set  forth  and  prescribed  for  actions 
brought  by  plaintiffs  on  book  debt  accounts. 

2.  1796,  c.  465.— 1756,  c.  57,  s.  2. 

3.  1756,  c.  57,  s.  3. 

4.  1756,  c.  57,  s.  4. 

5.  1756,  c.  57,  s.  6. 

6.  1756,  c.  57,  s.  7. 


Note  —  Refehemces  to  Adjudged  Cases. 

Sect.  1.  Mitchell  vs.  Clark,  Martin,  25.     Charlton  vs.  Sawyer,  ib.  26.  Thomague  vs. 
Bell,  ib.  44.     Kitchen  vs.  Tyson,  3  Murph.  214.     Stevelie  vs.  Greenlee,  1  Dev.  317. 


Chap.  XVI.] 


BURNING    WOODS. 


CHAPTER  16. 


BURNING   W^OOD8. 


AN  ACT  CONCERNING  THE  BURNING  OF  WOODS. 


Section 

1 .  No  person  to  set  fire  to  any  woods 
except  his  own,  and  then  not  with- 
out giving  two  days  notice. 


Section 

2.  Penalty   on  free    persons  violating 

this  act. 

3.  Penalty  on  slaves. 


3erson  to 


1.  Bk  it  enacted  by  the  General  Jlsseinbly  of  the  State  of  JS''orth 
Carolina^  and  it  is  hereby  enacted   by  the  authority  of  the  same, 
That  it  shall  not  be  lawful  for  any  person  to  set  fire  to  any  woods  ^'^F 
except  it  be  his  own  property,  and  in  that  case  it  shall  not  be  law-  woods  except 
fill  for  him  to  set  fire  to  his  own   woods  without  first  sivina:  notice  \^®  °^^'  ^^^ 

-.-.  .-.,,...  .  ,  111-  11  then  not  with- 

to  all  persons  owning  lands  adjoining  to  said  wood  lands  intended  out  giving  two 
to  be  fired,  at  least  two  days  before  the  time  of  setting  such  woods  ^^^^  notice. 
on  fire,  and  also  taking  effectual  care  to  extinguish  such  fire  before 
it  shall  reach  any  vacant  or  patented  lands  contiguous  or  adjoining 
to  such  lands  so  fired. 

2.  Every  free  person,  offending  against  the  provisions  of  this  Penalty  on  free 
act,  shall  forfeit  and  pay  for  every  such  offence  the  sum  of  fifty  fng\his  act.^ ' 
dollars,  to  be   recovered  before  any  justice  of  the  peace,  to  the 

use  of  the  person  suing  for  the  same,  and  shall  also  be  further 
hable  to  the  party  injured  by  such  unlawful  firing  of  the  woods,  for 
all  damages  that  may  accrue  therefrom. 

3.  If  any  slave  shall  violate  this  act,  he  shall,  on  conviction  be-  Penalty  on 
fore  a  single  magistrate,  receive   thirtynine  lashes  at  the  public  ®l^'^^^- 
whipping  post. 

1.  1777,  c.  123,  s.  2. 

2.  1782,  c.  182. 

3.  1777,  c.  123,  s.  3. 


Note.  —  Refeeences  to  Adjudged  Cases. 

Sect.   1.  Wright  vs.   Yarborough,    N.   C.   Term   R.  263. — Tyson  vs.    Rasburj',  l 
.Hawks.  60. 


100 


CATTLE,  HORSES    AND  HOGS.     [ChAP.  XVII. 


CHAPTER  17. 

CATTL.E,  HORSES   AND  MOI^S. 


AN  ACT  CONCERNING  CATTLE,  HORSES  AND  HOGS. 


Section 

1 .  Every  owner  of  stock  to  have  a  mark 

and  brand — Mark  and  brand  to  be 
recorded. 

2.  Penalty  for  killing  cattle  or  hogs  in 

the  woods,  and  not  exhibiting  the 
head,  ears  and  hide  within  two  days. 

3.  Cattle  not  to  be  driven  into  this  State 

from  South  Carolina  or  Georgia  be- 
tween 1st  of  April  and  1st  of  No- 
vember. 

4.  Cattle  not  to  be  driven  from  certain 

parts  of  this  State  into  the  high- 
land parts  thereof  between  the  1st 


Section 

of  April  and  the  1st  of  November. 

5.  Persons  driving  cattle  from  one  part 

of  the  State  to  another,  must  have 
a  certificate  of  the  place  from  wliich 
they  were  driven,  and  of  their 
healthy  condition — Justice  not  to 
grant  a  certificate  without  an  affi- 
davit. 

6.  Stoned  horses  of  two  years  old   not 

to  go  at  large. 

7.  Remedy   for  persons   having  stock 

killed  upon  the  rail  roads  by  the 
ensiines  orcars. 


Every  owner 
of  stock  to 
have  a  mark 
and  brand. 
Mark  and 
brand  to  be  re 
corded. 


1.  Be  it  enacted  by  the  General  ^Rssembly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  every  person  in  this  State,  who  hath  any  horses,  cattle  or 
hogs,  shall  have  an  ear  mark  or  brand  different  from,  the  ear  mark 
and  brand  of  all  other  persons,  which  ear  mark  and  brand 
he  shall  record  with  the  clerk  of  the  county  where  his  horses, 
cattle  or  hogs  are,  if  not  already  recorded,  and  he  shall  brand  all 
horses  with  the  said  brand  from  eighteen  months  old  and  upwards, 
and  ear  mark  all  his  hogs  from  six  months  old  and  upwards  with 
the  said  ear  mark,  and  ear  mark  or  brand  all  his  cattle  from  twelve 
months  old  and  upwards  with  the  said  ear  mark  or  brand.  And  if 
any  dispute  shall  arise  about  any  ear  mark  or  brand,  the  same  shall 
be  decided  by  the  book  of  the  clerk  of  the  county  court,  where 
such  cattle,  horses  or  hogs  are. 
Penalty  for  2.   If  any  person  hereafter  shall  kill  any  one  or  more  neat  cattle 

^Jig^fj^'^^'^"^^  "'^  or  hogs  in  the  woods,  he  shall,  within  two  days,  shew  the  head 
woods  and  not  and  ears  of  such  hog  or  hogs,  and  the  hide  with  the  ears  on  of 
head'^earland  ^"^^  "^^^  beast  or  cattle,  to  the  next  magistrate,  or  to  two  sub- 
hide  within  two  stantial  freeholders,  under  penalty  of  ten  dollars,  to  be  recov- 
^^^'  ered  by  any  person  who  will   sue  for  the  same  by  action  of  debt 

before  any  justice  of  the  peace. 
Cattle  not  to  be      3.  No  person  whatever  shall  hereafter  drive  any  cattle  into  this 
state'from        State  between  the  first  day  of  April  and  the  first  day  of  November 
South  Carolina  in  every  year,  from  either  the  states  of  South  Carolina  or  Georgia, 

or  Geor^a  be-  -^    •'         ^  °     ' 

tween  first  of 

April  and  first       1.  1741,  c.  26,  s.  6. 
ofNovember.         2.  1741,  c.  26,  s.  5.— 1803,  c.  627,  s.  1. 
3.    1795,  c.  439,  s.  1. 


Chap.  XVII.]    cattle,  horses  and  hogs.  101 

linger  the  penalty  of  four  dollars  for  each  and  every  head  of  cattle 
brought  into  this  State  contrary  to  the  meaning  of  this  section,  to 
be  recovered  by  any  jurisdiction  having  cognizance  thereof,  by  any 
person  suing  for  the  same,  one  half  to  his  own  use,  and  the  other 
half  to  the  use  of  the  State. 

4.  No  person  shall  hereafter  drive  any  cattle  from   those  parts  p'^ttle  not  to 
of  this  State,  where  the  soil  is   sandy  and  the  natural   production  certain  parts  of 
or  growth  of  timber  is  the  long  leafed  pine,  into  or  through   any  [{^^^j^^y^  ^}° 
of  the  highland  parts  of  the    State   where  the  soil  or   growth  of  parts  thereof 
timber  is  of  a  different  kind,  between  the  first  day  of  April  and  jj^g^of ^  ^rii 
the  first  day  of  November  in  every  year,  under  the  penalty  of  four  and  first  of  Nov. 
dollars  for  each  and  every  head  of  cattle  so  driven,  to  be  recovered 

and  applied  as  before  mentioned. 

5.  No  person  or  persons  shall  hereafter  drive  any  cattle  from  Persons  drmng 

1  1  *f       ^  c<ittl6  irom.  on6 

any  part  of  this  State  through  any  other  part  thereof,  without  first  prt  of  the 
obtainins;  and  carrvine  with  him  or  them  a  certificate  or  certificates  '^^^^'^  to  anoth- 

GT    must  IlElVG  3. 

under  the  hands  and  seals  of  two  justices  of  the  peace  of  the  county  certificate  of 
where   such  cattle  were  severally  and   respectively  purchased  or  ^^^-P/^'^^f  ^^°^ 
collected  from  range,  accompanied  with  an   affidavit  or  affidavits  were  driven 
of  the    owner    or  owners  of  said   cattle,  setting  forth  the  place  ^'^^"f  ^'i"',. 

-'  o  J.  iiG3,Itnv  conQi- 

or  places  where   said  cattle    were  purchased    or  had  ranged    as  tion. 
aforesaid,  and  describing  therein  the  nature  of  the  soil  and  growth 
of  timber  on  such  place  or   places,  and  also  that  said  cattle  were 
at  the  time  of  purchase  or  removal  sound  and  free  from  any  infec- 
tious  distemper.     And  if  any  justice  shall   grant  such  certificate  Justice  not  to 
without  an  affidavit  of  the  owner  or  owners  as  aforesaid,  it  shall  be  fate  without  an 
deemed  a  misdemeanor  in  office.  afiidavit. 

6.  No  person   whatsoever  in  this  State  shall  suffer  or  let  go  at  Atoned  horses 
large  any  stoned  horse   or  horses  of  two  years   old   or   upwards,  old  not  to  go 
upon  penalty  of  forfeiting  such  horse  or  horses  or  the  sum  of  two  ^t  large, 
dollars   to   the  taker  up   of  any  such  stoned  horse,   provided  the 

same  be  found  running  at  large  not  within  the  confines  of  any  fence, 
water,  marsh  or  swamp. 

7.  When  any  cattle  or  other  live  stock  shall  be  killed  or  other- Remedy  for 
wise  injured  by  the   engines  or  cars  running  upon  any  rail  road  in  persons  having 
this  State,  it  shall  be  lawful  for  the  owner  or  owners  of  such  live  upon  rail  roads 
stock  to  sue  out  a  warrant  from  any  justice  of  the  peace  and  have  ^ly  the  engines 

^1  ,  ,  .  ,  •'   •'  T  1111  or  cars. 

tne  same  served  on  the  president,  or  any  du'ector,  stockholder,  or 
acting  agent  for  such  rail  road  company,  and  upon  return  thereof 
it  shall  be  the  duty  of  such  justice  to  cause  two  freeholders  to  be 
summoned,  who  after  being  duly  sworn,  which  oath  said  justice 
may  administer,  shall  hear  evidence  and  upon  proof  of  such  in- 
jury so  complained  of,  shall  assess  the  amount  of  damages  which 
the  owner  or  owners  of  such  live   stock  shall  have  sustained,  and  * 

the  justice  shall  enter  up  judgment  for  the  same  against  the  said 
rail  road  company,  and  issue  execution  thereon  as  in  other  cases  ; 
Provided^  however^  that  such  judgment  shall  be  subject  to  the  right 
of  appeal. 

4.  1795,  c.  439,  s.  2. 

5.  1795,  c.  439,  s.  3. 

6.  1801,  C.  59-1. 

r.  1333,  c.  23,  s.  3. 


CHARITIES. 


[Chap.  XVIII. 


Citi2:tnsKip    _    korr.ft^Uy^xlJ'fl^Ohf^ 


CHAPTER  18. 


(H^  '^6 


CHARITIES. 


AN  ACT  CONCERNING  CHAR  TIES. 


Trustees  of 
charities  to  de- 
liver a  full  ac- 
count of  their 
trusts  to  the 
clerk  of  the 
county  court. 


Section 

1 .  Trustees  of  charities  to  deliver  a  full 

account  of  their  trusts  to  the  clerk 
of  the  county  court. 

2.  If  trustees   fail   to   render   such    ac- 

counts, or  mismanage  their  trustSj 
the  attorney  general  or  a  solicitor 
shall  file  a  bill  in  equity  against 
them. 


Section 

3.  The  attorney  general  or  a  solicitor  may 

also  bring  a  suit  in  equity  at  the 
suggestion  of  two  citizens^ — Court 
to  make  necessary  orders,  &c. 

4.  The   attorney  general   and  solicitors 

allowed  fees  in  such  cases. 


If  trustees  fail 
to  render  such 
account,  or 
mismanage 
their  trusts, 
the  attorney 
general  or  a  so- 
licitor shall  file 
a  bill  in  equity 
against  them. 


The  attorney 
general,  or  a 
solicitor  may 
also  bring  a 
suit  in  equity 
at  the  sugges- 
tion of  two  cit- 
izens. 

The  attorney 
general  and  so- 
licitor allowed 
fees  in  such 
cases. 


1.  Be  it  enacted  by  the  GeneralJlssembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  when  real  or  personal  property  has  been  or  shall  be  granted 
by  deed,  will,  or  otherwise  for  such  charitable  purposes  as  are 
allowed  by  law,  it  shall  be  the  duty  of  those,  to  whom  are  confid- 
ed the  management  of  the  property  and  the  execution  of  the  trust, 
to  deliver  in  writing  a  full  and  particular  account  thereof  to  the 
clerk  of  the  court  of  pleas  and  quarter  sessions  of  the  county, 
where  the  charity  is  to  take  effect,  at  the  first  term  of  said  court, 
which  shall  be  held  after  the  first  day  of  January  in  each  year,  to 
be  filed  among  the  records  of  the  said  court. 

2.  If  the  foregoing  requisition  be  not  complied  with,  or  there  be 
reason  to  believe  that  the  property  has  been  mismanaged  through 
negligence  or  fraud,  it  shall  be  the  duty  of  the  chairman  or  acting 
chairman  of  the  aforesaid  court  to  give  notice  thereof  to  the  at- 
torney general  or  solicitor,  who  represents  the  State  in  the  supe- 
rior court  of  law  for  the  aforesaid  county  ;  and  it  shall  be  his  duty 
to  file  a  bill  in  equity  in  the  name  of  the  State  against  the  grantees, 
executors,  or  trustees  of  the  charitable  fund,  calling  on  them  to 
render  a  full  and  minute  account  of  their  proceedings  in  relation 
to  the  fund  and  the  execution  of  the  trust,  under  the  same  rules 
and  regulations  as  now  obtain  between  private  individuals. 

3.  The  attorney  general  or  sohcitor,  may  also,  at  the  sugges- 
tion of  two  reputable  citizens,  commence  a  suit  in  equity  as  afore- 
said ;  and  in  either  case,  the  court  may  make  such  order  and  de- 
cree as  shall  seem  best  calculated  to  enforce  the  performance  of 
the  trust  and  to  effectuate  the  intention  of  the  donor. 

4.  The  court  may  allow  fees  to  the  solicitor  for  his  services,  to 
be  paid  by  the  trustees,  the  estate,  or  the  county,  as  shall  be  or- 
dered by  the  court. 

1.  1332,  c.  14,  s.  1.— 43  Eliz.  c.  4.' 

2.  1832,  c.  14.  s.  2. 

3.  1832,  C.  14,  s.  3. 

4.  1832,  c.  J4,  s.  4. 


Chap.  XIX.] 


CLERKS    OF    COURTS. 


CHAPTER    19. 


103 


CL-ERKS  OF  THE  COUNTY  AND 
gUPERIOK  COUMTS. 


AN  ACT  CONCERNING  THE  CLERKS  OF  THE  COUNTY  AND  SUPERL 

OR  COURTS. 


Section 

1.  Clerks  of  the   county  and   superior 

courts  -when  and  how  to  be  elected. 

2.  Who  qualified  to  vote  for  clerks. 

3.  Who  to  declare  the  persons  elected 

—Clerks  to  hold  their  offices  for 
four  years — Who  to  decide  in  the 
case  of  a  tie,  and  to  decide  contest- 
ed elections. 

4.  Clerks  to  give  bonds  and  take  oaths 

— On  failure  to  give  bonds,  &c.  the 
court  to  appoint  another. 

5.  How  vacancies  in  the  office  of  supe- 

rior court  clerk  shall  be  supplied — 
How  in  that  of  county  court  clerk. 

6.  Judge  upon  the  appointment  of  a  supe- 

rior court  clerk,  to  make  an  order 
for  the  surrender  of  the  records,  &c. 

7.  Besides  the  bonds  for  the  collection 

of  taxes,  &c.  clerks  to  give  bond  for 
keeping  the  records  and  the  faith- 
ful discharge  of  their  duty. 

8.  How  the  bonds   of  the  clerks  of  the 

respective  courts  shall  be  proved 
and  where  deposited. 

9.  Bonds  to  be  registered  and  copies  to 

be  evidence  when  the  originals  are 
lost. 


Section 

10.  Bonds   to  be  kept   under  the  same 

rules  as  records. 

11.  Clerks  to  renew  their  bonds  annually 

— Must  produce  receipts  for  all  pub- 
lic moneys  paid  before  renewing. 

12.  Penalty   for  acting  as   clerk   before 

giving  bond  and  qualifying. 

13.  Clerks  to  take  oaths  before  entering 

upon  their  office. 

14.  Penalty  for  violating  oath,  or  misbe- 

havior in  office. 

15.  Clerks'  offices  to  be  kept  at  the  court 

house — Deputies  how  to  be  qualifi- 
ed— To  act  in  case  of  the  death  of 

the  clerk. 
To  whom  clerks  shall  resign. 
County  courts  in  certain  cases  may 

remove    their  clerks   and    appoint 

others. 
Twelve  months  residence  out  of  the 

county  shall   vacate   the   office   of 

clerk. 
In  such  case  how  the  clerk  is  to  be 

proceeded  against  and  removed. 
Clerks,  upon  resignation  or  removal, 

to  deliver  over  to  their  successors 

the  records,  &c. 


16. 

17. 


18. 


19. 


20. 


1.   Be  it  enacted  by  the  General  Assembly  of  the  State' of  Js^orth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  at  the  time  of  the  election  of  members  of  congress  from  this  ^-.^^^^     ^  ^j^^ 
State,  in  the  year  one  thousand  eight  hundred  and  thirtyseven,  and  county  and 
at  the  same  time  every  four  years  thereafter,  a  poll  shall  be  open-  tXTand°how 
ed  for  the  election  of  a  clerk   of  the  superior  and  county  court  in  to  be  elected. 
each  county,  by  the  same  persons,  in  the   same  manner  and  under 
the  same  rules,  regulations  and  restrictions  as  polls  are  opened  and 
held  for  members   of  the  General  Assembly  ;   and  in  case   of  the 
failure  of  persons  or  either  of  them  appointed   to  hold   said  elec- 
tions, it  shall  be  competent  for  a  justice  of  the  peace  and  two  free- 
holders to  supply  such  vacancy. 


1.   1832,  c.  2,  s.  1,-1834,  c.  7,  s.  1. 


104  CLERKS    OF    COURTS.  [ChAP.  XIX. 

Who  qualified      2.   All  persons  qualified  to  vote  for  members  of  the  house  of 
clerks!  ^°^        commons  in  the  General  Assembly  of  this  State   shall  be  entitled 
to  vote  for  clerks  of  the   county   and  superior   courts   in  their  re- 
spective counties. 
Who  to  declare      3.   The  sheriffs  or  other  persons  qualified  to  hold  said  elections 
elected!°^^       shall,  at  the  court  house  or  other  place  of  returning  and  compar- 
ing the  polls,  declare   the  person  or  persons   having  the   highest 
Clerks  to  hold  ""^^^®^  °^  votes  duly   elected  clerk  of   the   county  or   superior 
their  offices  for  court  as  the  case  may  be,  who  shall  continue  in  office  for  the  term 
our  years.       ^^  ^^^^^  years  next  after  their  qualification,  and  in  the  event  of  two 
or  more  persons  having  an  equal  and  the  highest  number  of  votes 
Who  to  decide  for  either  of  the  offices  aforesaid,  then  and  in  that  case  the  court 
and  to  decide^  '  of  pleas   and  quarter   sessions,  a  majority  of  the   acting  justices 
contested         being  present,  shall  proceed  to  make  the  election  as  prescribed  for 
the  election  of  sheriff  under  like  circumstances  ;  and  said  court  in 
manner    aforesaid  shall  be    a    competent  tribunal  to   decide    all 
contested  elections  under  this  act. 
Clerks  to  give      4.   The  clerks  elected  under  any  of  the  provisions  of  this  act 
oaths^/"^   ^^  ^  shall  at  the  first  term  of  their  respective   courts,  which  shall  hap- 
pen after  their  election,  or  at  the  term  when  elected  if  elected  by 
the  court,  execute  and  tender  to  the   said  courts   the  bonds,  and 
take  the    oaths  hereinafter  mentioned,  or  such  as  may  be  hereafter 
prescribed  by  law,  and  where  a  vacancy  shall  be   occasioned  by 
On  failure  to     failure  to  give  the  necessary  bonds,  refusal  or  neglect  to  qualify, 
fhrcourt  to  ap-  death,  resignation,  removal  or   otherwise,  the  court  in  which  such 
point  another,  failure  may  happen,  shall  proceed  to  fill  the   vacancy   in  the  same 
manner  as  prescribed  in   the  following   section  for  vacancies  oc- 
curing  after  qualification,  and  the  person  or   persons   so  appointed 
shall  continue  in  office  until  the  next  regular  election  and  qualifica- 
tion of  clerks  under  this  act. 
How  vacancies      5.   Whenever  a  clerk  of  the  superior  court  shall  resign  or  his 
in  the  office  of  office  shall  be  in  any  Other  manner  Vacated   after  his  qualification, 

superior  court  ,  ,     ^  i  •'  .       .  ^ ,  .  i       •     i  r     i  • 

clerk  shall  be    and  before    the   expiration  oi  his  term,  tlie  judge  of  the  superior 
supplied  court  who  may  be  assigned  to  ride   the    circuit   in    which    said 

the  county       vacancy  has   occurred,   shall  fill  the  vacancy  for   the  unexpired 
court  clerk.       portion  of  his  term;  and  whenever  a  clerk  of  the   county  court 
shall  resign  or  his  office  is  vacated  after  his  quahfication  and  before 
the  expiration  of  his  term,  the  justices  of  the  next  county  court, 
a  majority  being  present,  shall   fill  the  said  vacancy  for  the  unex- 
pired portion  of  said  term,  and  the  person  appointed  under  this  or 
the  last  preceding  section   clerk  of  the  superior  or  county  court, 
shall  give  bond  and  take  the  prescribed  oaths,  as  in  other  elections 
under  this  act. 
Judge  upon  the      6.   Whenever  any  appointment   of  clerk  of  the   superior  court 
appointment  of  shall  be  made  by  any  judge,  either  in  vacation  or  in  term  time,  the 
cleriT.^to  make  judge  making  the  same  shall  give  to  the  person  appointed  an  order 
an  order  for  the  on  the  person  or  persons,  in  whose  custody  the  records  of  said  court 
records, &c.      shall  be,  who  shall  deliver  the  same  in  obedience  to  the  said  order. 

2.  1832,  c.  2,  s.  2. 

3.  1832,  c.  2,  s.  3. 

4.  1832,  c.  2,  s.  4. 

5.  1334,  c.  7,  s.  2. 

6.  1816,  c.  903,  s.  2. 


Chap.  XIX.]  clerks  of  courts.  105 

7.  In  addition  to  the  bonds  required  of  the  clerks  of  the  supe- Besides  the 
rior  and  county  courts  for  the  due  collecting  and  accounting  for  ^°{Jg^^[°^^j|.^ 
taxes  on  attorneys'  hcenses,  suits,  &c.,  they  shall  give  bond  in  the  taxes,  &c. 
penal  sum  of  ten  thousand  dollars,   payable  to  the  State  of  North  ^|,""^*f^°  fgg^_ 
Carolina,  conditioned  for  the  safe  keeping  of  the  records  and  the  ing  the  records 
faithful  discharge  of  their  duty  in  office,  which  may  be  sued  upon  f^]*^^lg^[^^^^^*'^f 
by  the  person  injured,  in  the  name  of  the  State,  and  shall  not  be- their  duty.^ 
come  void  upon  the  first  recovery,  or  if  judgment  be  given  against 

the  plaintiff,  but  may  from  time  to  time  be  put  in  suit  by  action  of    . 
debt,  until  the  whole  penalty  shall  be  recovered. 

8.  It  shall  be  the  duty  of  the  judges  of  the   superior  courts  of  How  the  bonds 
law  to  cause  the  bonds  taken  by  them  from  the  clerks  of  the  re- °[  Jjj^  ^'^J^'^^^_ 
spective  superior  courts   to   be   acknowledged  or   proved  before  tive  courts  shall' 
them,  and  to  endorse  thereon  a  certificate  of  such  acknowledgment  ^\^™^j^^  pg5 
or  probate,  and  it  shall  be  the   duty  of  the  justices  of  the  courts  ited. 

of  pleas  and  quarter  sessions  to  cause  all  bonds  taken  before 
them  of  the  clerks  of  their  respective  courts  to  be  acknowledged 
or  proved  in  open  court,  and  endorse  thereon  a  certificate  of  such 
acknowledgment  or  probate,  which  certificate  shall  be  signed  by 
the  justice  who  presides  in  court  at  the  time  such  acknowledg- 
ment or  proof  is  made,  and  all  bonds  so  taken,  proved  and  certifi- 
ed shall  be  deposited  in  the  following  offices,  viz.,  bonds  of  the 
clerks  of  the  superior  courts  of  law  shall  be  deposited  in  the  offices 
of  the  clerks  of  the  county  courts  of  pleas  and  quarter  sessions, 
and  the  bonds  of  the  clerks  of  the  county  courts  of  pleas  and  quar- 
ter sessions  shall  be  deposited  in  the  offices  of  the  superior  courts 
of  law  of  the  respective  counties. 

9.  The  clerks,  in  whose  offices  said  bonds  shall  be  deposited,  ^on'^s  to  be 

in  1  ^     &      •  !•       1  •  1  •       1  •         1    registered,  and 

shall  cause  the  same  to  be  mimediately  registered  m  the  register  s  copies  to  be  ev- 
office  of  their  respective  counties,  and  on  the  destruction  or  loss  of  i'|'^"'^'^.There 
the  original  a  certified  copy  of  said  bond  shall  be  received  in  evidence,  are  lost. 

10.  It  shall  be  the  duty  of  the  clerks  of  the  respective  courts  Bonds  to  be 
aforesaid  safely  to  keep  the  bonds  deposited  in  their  offices,  under  ^^iP^^j^g  ^^^ 
the  same  rules  and  regulations  as  are  provided  by  law  for  the  safe  records. 
keeping  of  the  records  of  their  courts. 

11.  The  clerks  of  the  superior  and  county  courts  shall  and  they  Clerks  to  re- 
are  hereby  required  to   renew  their   several  bonds  for  the  faithful  annually-"'^  ^ 
discharge  of  their  duties  in  office,  with  good  and  sufficient  securi- must  produce 
ties,  annually  at  the  several  and  respective  terms  of  the  courts  at 'u'j^i'j^  moneys 
which  they  were  qualified  and  entered   upon  the  discharge  of  the  paid  tiefore  re- 
duties  of  their  office,  and  all  such  of  the  said  officers,  as  shall  re- "'^''^'"^" 

fuse  or  neglect  to  renew  their  respective  bonds  at  the  time  before 
mentioned,  and  give  other  and  better  securities,  when  judged  ne- 
cessary by  the  said  courts,  shall  be  considered  as  having  forfeited 
their  respective  offices.  Provided  always,  that  no  clerk  shall  be 
permhted  to  renew  his  bonds,  unless  he  shall  produce  fi'om  the  pub- 
lic treasurer,   county  trustee  and  wardens   of  the  poor,  receipts  in 

7.  1777,  c.  115,  S.  3.— 1827,  c.  9,  s.  1. 

8.  1S27,  c.  9,  S.  2. 

9.  1829,  c.  9,  s.  3. 

10.  1827,  c.  9,  s.  4. 

11.  1819,  c.  990.— 1793,  c.  SSI,  s.  4.-^1806,  c.  599,  s.  1. 

VOL.  1.  14 


106  CLERKS    OF    COURTS.  [ChAP.  XIX. 

full  of  all  moneys  by  him  received,  for  the  use  of  the  State  and 
county  and  for  which  he  shall  have  been  accountable. 
Penalty  for  12.   No  clerk  of  any  superior  or  county  court  shall  enter  on  the 

acting  as  clerk  (j^ties  of  his  office,  before  he  enters  into  and  delivers  over  to  the 

beiore  giving  i       •       i  ■  i  i       i         i  •       i  i       i 

bond  and  qual-  person  authorized  to  receive  the  same  the  bonds  required  by  law, 

ifying-  under  the  penalty  of  two  thousand  dollars  to  be  recovered  before 

any  jurisdiction  having    cognizance  thereof,  onehalf  to  the  use  of 

the  person  who  shall  sue  for  the  same,  and  the  other  half  to  the 

use  of  the  wardens  of  the  poor  of  the  county,  in  which  suit  shall  be 

brought  and  a  recovery  had. 

Clerks  to  take       13.  Each  and  every  clerk  of  the  superior  and   county  court, 

entermgupon   before  entering  upon  the  execution  of  his  office,  shall  take  the  oath 

their  office.       prescribed  for  the  qualification  of  public  officers  and  also  an  oath 

of  office. 
Penalty  for  vi-       14.   And  if  it  shall  be   discovered   that  any  of  the  said  clerks, 
mfs^belavior  ""^  ^f"-®"^  ^^^  appointment,  shall  have  violated  his  said  oath,  or  wittingly, 
in  office.  willingly  and  corruptly  have  done  any  thing  contrary  to  the  true 

intent  and  meaning  thereof,  such  clerk  shall  be  deemed,  upon  con- 
viction, guilty  of  misbehavior  in  office  and  shall  forever  afterwards 
be  incapable  of  holding  any  office  civil  or  mifitary  within  this  State. 
Clerk's  office        15.   The  clerks  of  the  several  superior  and  county  courts  shall 
the^courfhOTise  '^^^P  ^^^'^^^  offices  at  the   court  house  in   their  respective  counties, 
where,  by  themselves  or  their  lawful  deputies,  they  shall  give  due 
attendance,    and  all  deputies  shall  take  the  oath  to  support  the 
constitution  of  the  United  States  and  of  this  State  and  an  oath  of 
office,  and  in  case  of  the   death  of  the  clerk  of  any  court  in  the 
to  be  (qualified,  vacation,    his  deputy  shall  hold  the  office  of  clerk  until    he    or 
*f  th 'd*^^r  f^'^ott'sr  shall  be  appointed  agreeably  to  Igw,  and  shall  be  entitled 
the  clerk.         to  the  fees  and  perquisites  of  the  office  until  such  appointment. 
To  whom  16.  No  clerk  of  the  county  court  shall  be   allowed  to  resign 

resign^  ^^^^      ^^^^^^  ^^^  qualification  to  any  other  person  or   authority,  but  to  the 
county  court  of  his   county,   and  no  clerk  of  the  superior  court 
shall  be  allowed  to  resign  after  his  qualification  to  any  other  power 
or  authority,  but  to  the  judge  of  said  court  sitting  in  court,  or  to 
the  judge  assigned  to  ride  the  next  circuit  in  which  the  county  is 
situate  of  which  he  is  clerk. 
in°cemiTcas^es      ^^-   ^^^^  courts  of  pleas   and  quarter  sessions  shall  have  full 
may  remove      power  and  authority,  on  their  respective  clerks  being  convicted  or 
Vpoiiit  others.  ^0""d  guilty  on  a  bill  of  indictment  for  neglect  of  duty  or  misde- 
meanor in  office,  to  remove  such  clerk  and  proceed  to  the  election 
of  another,  under  the  rules  and  regulations   above  prescribed  for 
filling  vacancies  in  the  office  of  clerk  of  the  county  court. 
Twelvemonths      18.   It  shall  not  be  lawful  for  any  clerk  of  the  court  of  pleas  and 
oFthe'county    quarter  sessions  in  any  county  of  this  State   to   retain  his   office, 
shall  vacate  the  after   he    shall  have  resided  out  of  the  county  wherein  he  was 
'^  ^'^^  ■  appointed  clerk  for  more  than  twelve  months. 

.   12.  1827,  c.  9,  s.  5. 

13.  1777,0.  115,s.  4  and  61. 

14.  1777,  c.  115,  s.  4. 

15.  1777,0.  115,  s.  86. 

16.  1834,  o.  7,  s.  3. 

17.  1800,  c.  563,  s.  1. 

18.  1820,  C.  1042,8.  1. 


Chap.  XX.]  clerks  and  masters  in  equity. 


107 


19.  When  any  clerk  of  the  court  of  pleas  and  quarter  sessions  in  such  case 
shall  have  resided  out  of  his  county  for  more  than  twelve  months,  J^g°^l^®  ^^^^^ 
it  shall  be  lawful  for  the  court   to  make  a  rule  on  such  clerk,  ceeded  against, 
returnable  to  the  next  court  of  pleas  and  quarter  sessions  of  such  ^^^  removed. 
county,  to  shew  cause,  if  any  he  has,  why  he  shall  not  be  removed 

from  his  office,  for  so  removing  himself  out  of  his  county,  which 
rule  shall  be  served  on  such  clerk  if  he  resides  in  the  State,  and 
on  the  return  of  such  rule,  if  it  shall  be  made  appear  to  the  sat- 
isfaction of  said  court,  that  such  clerk  has  so  removed,  it  shall  be 
the  duty  of  said  court  to  vacate  his  office  and  to  elect  another  as 
in  other  cases  of  vacancy.  But  in  case  such  clerk  resides  out  of 
the  State,  it  shall  be  sufficient  service  of  said  rule  to  have  it  pub- 
lished by  order  of  the  court  for  two  months  in  any  newspaper  at 
the  seat  of  government  in  this  State,  which  publication  being  made 
appear  at  the  next  court  and  proof  being  made  to  the  satisfaction 
of  said  court  of  such  removal,  it  shall  be  the  duty  of  said  court 
and  they  are  hereby  required  to  remove  such  clerk  from  his  office, 
in  the  same  manner  and  for  the  same  cause  as  in  case  of  actual 
service  of  the  rule. 

20.  Upon  the  resignation  or  removal  from  office  of  any  clerk,  res1^ation"or 
either  of  the  superior  or   county  court,  he  is  required  to  transfer  removal,  to  de- 
and  deliver  up  to  his  successor  in  office  all  records,  documents  and  thdr successors 
papers  relative  to  his  said  office,  under  the  penalty  of  one  thousand  the  records,  &c. 
dollars,  to  be  recovered  by  action  of  debt  in  the  name  of  the  State 
and  apphed  to  the  use  of  the  State.  . 


19.  1820,  c.  1042,  s.  2. 

20.  1800,  c.  563,  s.  2. 


iVo^e.  ^  References  to  Adjudged  Cases.  /  ^/^/j-'t.  GA^    ^     _     Id  ■ 

Sect.  11.  Oats  w.  Bryan,  3  Dev.  351.  j^L.l^i~.   C^l^~'- ■    C  t-   SeO-Cii'^     A 

Sect.  15.   Shepard  vs.  Lowe,  2  Dev.  148.  .'«,-,'     <j//i  «-<: 


ty  e^ivx  t  rv^ 


CHAPTER   20. 

CliERKS    AND    MASTERS    IN 

EQ^IJITY. 


an  act  concerning  the  appointment  and  duties  of  clerks 

AND  masters  in  EQUITY. 


Section 

1 .  Judges  of  the  courts  of  equity  to  ap- 

point clerks  and  masters,  vsrho  shall 
hold  their  offices  for  four  years. 

2.  Clerks  and  masters  to  give  bond  and 


Section 

take  oaths — Same  remedies  against 
them  as  against  clerks  of  the  supe- 
rior courts. 


108 


CLERKS  AND  MASTERS  IN  EQUITY.    [ChAP.  XX. 


Section 
3.  Duty  of  clerks  and  masters  in  ea- 
roUing  bills,  answers,  decrees,  Slc. 


Section 

— Clerks  and  masters  may  admin- 
ister oaths. 


1.   Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 

Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

That  the  judges  of  the  courts  of  equity  shall  appoint  some  person 

comis  of  equity  of  skill  and  probity  to  act  as  clerk   and  master  in  equity  to  each 

to  appoint        of  the  said  courts,  and  shall  fill  all  vacancies  that  may  happen  in 

clerks  and  mas-  ^.,  ,  .  ,  ii- 

ters  who  shall  any  01  said  courts,  such  appomtment  to  be  made  and  vacancies 
hold  their  offi-  fiHed  by  the  judge  of  the  superior  court  of  law  and  equity,  who 
years.  ^aoy  be  assigned  to  ride  the  circuit  in  which  such  appointment  is  to 

be  made,  and  the  person  so  appointed  shall  hold  his  office  for  four 

years  from  the  time  of  his  qualification. 
Clerks  and  2.   Each  and  every  clerk  and  master  shall  give  the  like  bonds, 

masters  to  give  y^-^^^  good  and  sufficient  security,  and  take  the  same  oaths  before 

bond  and  take     ,       .  °,  m      i  r         i  i     i  c    i  •  r 

oaths.  the  judges,  as  prescribed  lor  the  clerks  ot  the  superior  courts  oi 

law,  and  in  all  respects  shall  be  subject  to  the  same  rules,  regula- 
tions and  restrictions,  with  respect  to  the  renewals,  probate,  and 
deposit  of  their  bonds,  as  prescribed  for  clerks  of  the  superior 
courts  of  law,  except  that  the  bonds  of  the  clerk  and  master  shall 
be  deposited  in  the  office  of  the  superior  court  clerk,  and  they 
Same  remedies  shall  be  liable  to  the  same  remedies  against  them,  for  a  breach  of 
inaybehad  g^ch  bonds,  or  for  moneys  collected  and  not  paid  over,  and  shall 
as  against  incur  the  same  penalties  for  acting  without  qualification,  and  for 
misdemeanor  in  office  as  clerks  of  the  superior  courts. 

The  clerk  and  master  of  each  and  every  court  of  equity  shall 


clerks  of  the 
superior  courts 
Duty  of  clerks 


and  inasters  in  keep  a  fair  and  distinct  record  of  the  proceedings  of  the  court  of 
answeJL^ de!-^^'  ^'^uity  to  which  he  may  be  appointed,  and  the  bills,  answers  and 
crees,  &c.  decrees  shall  be  regularly  enrolled  in  a  well  bound  book,  kept  for 
that  purpose  :  Provided,  that  no  bill,  answer  or  other  paper,  or 
proceedings  in  any  suit  in  any  court  of  equity  in  this  State,  (inter- 
locutory decrees  excepted,)  shall  be  enrolled  until  the  cause  is 
finally  decreed  on,  and  then  only  upon  motion  by  the  party  to  take 
benefit  of  such  decree,  and  the  court  shall  have  power,  and  are 
hereby  directed  to  adjudge  and  determine  what  papers  shall  and 
may  be  enrolled  in  any  suit  on  motion  as  aforesaid.  And  the  said 
clerk  and  master  in  equity  is  fully  empowered  and  authorized  to 
administer  the  oath  or  affirmation  to  all  and  every  person  and  per- 
sons, either  witnesses  or  others,  having  business  in  the  court  of 
equity,  at  all  times,  in  the  same  manner  as  masters  in  chancery 
do  in  like  cases  in  Great  Britain. 


Clerks  and 
masters  may] 
administer 
oaths. 


1.  1787,  c.  27S,  s.  3— 1806,  c.  693,  s.  10.— 1818,  c.  963,  s.  U.— 1822,  c.  1147,  s.  1. 

2.  1787,  c.  278,  s.  3.— 1806,  c.   699,  s.  1.— 1819,  c.    990.— 1827,  c.  9.-1777,  c.  115,  s. 
3.-1819,  c.  1002. 

3.  1787,  c.  278,  S.  3.-1801,  c.  574,  s.  3. 


/n^'  3.  ^y^-  ^^^<^ 


/f4^'/ 


^u  -^"2- 


Note. — References  to  Adjudged  Cases. 
Sect.  2.  Judges  vs.  Deans,  2  Hawks,  93. 


t' 


Chap.  XXL]   commissioners  of  affidavits. 


CHAPTER  21. 

COMMISSIONERS  OF  AFFIDAVITS. 


AN  ACT  APPOINTING  COMMISSIONERS  TO  TAKE  AFFIDAVITS. 


Section 

1.  Clerks  and  clerks  and  masters  ap- 

pointed commissioners  to  take  and 
certify  affidavits. 

2.  Governor  may  appoint  commission- 

ers to  take  and  certify  affidavits  in 
other  states  or  territories. 


Section 

3.  Such  commissioners  to  take  an  oath. 

4.  Governor  to  notify  clerks  of  com-ts  of 

record  of  his  appointments. 

5.  Power   and  authority  of  such  com- 

missioners. 


1.  Be  it  enacted  by  the  General  Jlssembly  of  the  State  of  J^orth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same,  That 

the  clerks  of  the  courts  of  pleas  and  quarter  sessions,  the  clerks  of  the  Clerks  and 
superior  courts  of  law,  and  the  clerks  and  masters  of  the  courts  of  ^^gjj.g^^p.     . 
equity,  are  authorized  and  empowered  to  take  and  certify  affidavits,  pointed  com- 
to  be  used  before  any  justice  of  the  peace,  judge  or  court  of  this  [^ke  and'^cer- 
State,  and  the   affidavits  so  taken   are  to  be  certified  under  the  tify  affidavits. 
hands  of  the  said  clerks  and  clerks  and  masters  respectively,  and, 
if  to  be  used  out  of  the  county  where  taken,  also  under  the  seal 
of  the  court  of  which  they  are  respectively  clerks  and   clerks  and 
masters. 

2.  The  governor  is   hereby  authorized  to  name,    appoint  and  Governor  may 
commission  one  or   more   commissioners   in   each  or  such  of  the  ^issione'rs'to 
other  states  in  the  United  States,  or  in  the  District  of  Columbia,  take  and  certify 
or  any  of  the  territories,  as  he  may  deem  expedient,  which  com-  otherlmes 
missioners  shall  continue  in  office  during  the  pleasure  of  the  gov-  or  territories. 
ernor,  and  shall  have  authority  to  take  the  acknowledgment  or 

proof  of  any  deed,  mortgage,  or  other  conveyance,  of  any  lands, 
tenements  or  hereditaments,  lying  or  being  in  this  State,  and  to 
take  the  private  examination  of  married  women,  parties  thereto,  in 
the  manner  now  required  by  law,  or  of  any  other  writing  under 
seal  to  be  used  in  this  State.  And  such  acknowledgment  or 
proof,  taken  or  made  in  the  manner  directed  by  the  laws  of  this 
State,  and  certified  by  the  commissioner  before  whom  the  same 
shall  be  taken  or  made,  shall  have  the  same  force  and  effect,  and 
be  as  good  and  available  in  law  for  all  purposes,  as  if  the  same  had 
been  made  or  taken  before  one  of  the  justices  of  the  supreme  court 
of  the  United  States,  or  judge  of  any  court  of  supreme  juris- 
diction in  any  of  the  United  States. 

3.   Every  commissioner  appointed  by  the  governor  as  aforesaid,  Such  commis- 
before  he  shall  proceed  to  perform  any  duty  under  or  by  virtue  of®^j^^"j|j_^°^^  ^ 


1.  1818,  c.  965,  s.  1. 

2.  1830,  c.  31,  s.  1. 

3.  1830,  c.  31,  s.  3. 


110  COMMON    LAW.  [ChaP.  XXII. 

this  act,    shall  take  and  subscribe  an  oath  or  affirmation  before  a 
justice  of  the  peace  in  the  city  or  county  in  which  such  commis- 
sioner shall  reside,  well  and  faithfully  to  execute  and  perform  all 
the  duties  of  such  commissioner  under  and  by  virtue  of  the  laws 
of  North  Carolina  ;  which  oath  or  affirmation  shall  be  filed  in  the 
office  of  the  secretary  of  this  State. 
ti^'cierkVof""'      4.   It  shall  be  the  duty  of  the  governor  to  make  known  to  the 
courts  of  rec-    clerks  of  the  several  courts  of  record  in  this    State,   the  names 
pointments^^    and  places  of  residence  of  such  persons  as  may  be  appointed  by 

virtue  of  this  act. 
Power  and  au-  ^  Every  Commissioner,  appointed  by  the  governor  by  virtue 
commissioners.  OI  this  act,  shaJl  have  lull  power  and  authority  to  administer  an 
oath  or  affirmation  to  any  person  who  shall  be  willing  or  desirous 
to  make  such  oath  or  affirmation  before  him,  and  to  take  depo- 
sitions and  to  examine  witnesses  under  any  commission  or  com- 
missions emanating  from  any  of  the  courts  of  this  State,  relating  to 
any  cause  depending,  or  to  be  brought  in  any  of  said  courts,  and 
every  deposition,  affidavit,  or  affirmation,  made  before  such  com- 
missioner, shall,  and  is  hereby  declared  to  be  as  good  and  effectual 
to  all  intents  and  purposes,  as  if  taken  before  any  officer  resident 
in  this  State,  and  competent  to  take  the  same. 

4.  1830,  0.  31,  s.  4. 

5.  1830,  c.  31,  s.  2. 


CHAPTER  22.    ^^"^"^  / 

» 

COMMON    L.A  yV . 


AN  ACT  DECLARING  WHAT   PARTS  OP   THE  COMMON  LAW  SHALL 
BE  IN  FORCE  IN  THIS   STATE. 

Be   it  enacted  by  the  General  Assembly  of  the    State  of  JYorth 
Carolina,  and  it  is  hereby  enacted  by  the   authority  of  the  same, 
Common  law    That  all  such  parts  of  the  common  law,  as  were  heretofore  in  force 
declared  to  be   and  usc  within  this  State,   or  so  much  of  the  said  common  law  as 
m  force.  j^  ^^^  destructive  of,  or   repugnant   to,  or  inconsistent   wnth,   the 

freedom  and  independence  of  this  State  and  the  form  of  govern- 
ment therein  established,  and  which  has  not  been  otherwise 
provided  for  in  the  whole  or  in  part,  not  abrogated,  repealed,  or 
become  obsolete,  are  hereby  declared  to  be  in  full  force  within 
this  State. 


1715,  c.  5,  s.  2,  3.— 1778,  c.   133. 

Note.  —  References  to  Adjudged  Cases. 
Sherrod  vs.  Davis,  1  Hay.  282. 


Chap.  XXIII.]  comptroller - 


111 


CHAPTER  23. 


COMPTROLLER. 


AN  ACT  CONCERNING  THE  COMPTROLLER. 


Section 

1.  Comptroller  biennially  elected  by  the 

General  Assembly. 

2.  Bond  to  be  given. 

3.  Oaths  to  be  taken. 

4.  Comptroller  to  settle  all  public  ac- 

counts and  keep  books. 

5.  To  keep  an  account  with  the  treasu- 

rer. 

6.  And  with  individuals. 

7.  Public  moneys  recovered  by  law  to 

be  paid  to  treasurer,  and  the  re- 
ceipts to  be  filed  with  the  comp- 
troller. 


Section 

8.  Balances   of  accounts  to    be   stated 

annually  and  reported. 

9.  Comptroller   to  report  annually    a 

printed   statement  of  the   accounts 

of  the  public  treasury. 
In  certain  cases  may   administer  an 

oath. 
No  warrants,  &c.  to  be   paid  unless 

first  entered   in   the   comptroller's 

ofiice  and  certified  by  him. 
Instrument   for  cancelling  vouchers 

to  be  procured. 
Comptroller's  certificate  evidence. 


10. 


11. 


12. 


13. 


1.  Be  it  enacted  by  the  GeneralJlssembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

That  a  comptroller  shall   be  biennially   elected  by  the    General  ComiDtroller 
Assembly,  in  the  same  manner  that  the  public  treasurer  is  elected  ;  ^'^"f ^^u^  .u 
he  shall  enter  into  the  duties  of  his  office  on  the  first  day  of  Jan-  General  As- 
uary,  and  continue  therein  for  two  years  and  until  his  successor    is  ^^i^bly 
appointed. 

2.  The  person  thus  elected  comptroller,  before    entering    upon  g^^^  ^^  ^^ 
the  duties  of  that  appointment,  shall  give  bond  with  sufficient  secu-  given, 
rity,  payable  to  the  State  of  North  Carolina,  in  the  sum  of  twenty 
thousand  dollars,  conditioned  for  the  safe    keeping  of  the    public 

books  of  accounts  and  all  vouchers  which  may  come  into  his  pos- 
session, and  for  the  faithful  performance  of  his  duty  in  office, 
which  bond  shall  be  taken  by  the  governor  for  the  time  being  and 
deposited  in  the  treasurer's  office  for  safe  keeping. 

3.  The  comptroller  shall   also,  before  entering  upon    the  duties  ^  th   t   i 
of  his  appointment,  take  before  some  justice  of  the  peace  the  oaths  taken, 
prescribed  by  law  for  the  qualification    of  public  officers  and    also 

an  oath  of  office. 

4.  It  shall  be  the  duty  of  the  comptroller  to  settle    and   report 

on  all  pubhc  accounts  of  the  State,  and  to  keep  regular  books  and  to  settle  aifpub- 
statements  of  the  same,  which  he  shall  do  in  the  manner   follow- ii<=,acto""ts 
mg,  that  is  to  say,  he  shall  report    the   net    amount,  which    shall 
annually  become  due  and    payable    from  the   respective    revenue 


and  keep  books. 


1.  17S2,  c.  17S — 1792,  c.  368,  S.  9.— 183G,  c.  50. 

2.  1792,  c.  368,  s.  1. 

3.  1782,  c.  178,  s.  2. 

4.  1792,  c.  368,  s.  2.— 1793,  c.  397,  s.  1,  2. 


112  COMPTROLLER.  [ChAP.  XXIII. 

officers  to  the  treasurer  of  the  State,  (to  the  end   he    may  be    in- 
formed of  the  same  and    enforce  the   due  payment  thereof,)  first 
raising  an  account  and  debiting  in  his  books  each  officer  so  reported 
against,  whom  he  shall  credit  by  the  amount    of  such   receipts  as 
they  or  any  of  them  shall  from  time  to  time  produce  from  the  treas- 
urer. 
To  keep  an  ac-      5.   The  Comptroller  shall  open  an  account  with  the  treasurer,  in 
treasurer.      ^  which  he  shall  debit  him  with  the    amount  of  each   respective  re- 
ceipt, which  the  treasm-er  shall  have  given,  according  to  the  four- 
teenth section  of  the  act  concerning  the  treasurer,  and  which  pur- 
suant thereto  shall  have  been  filed  in  his  office,  and  credit  him  by 
the  amount  of  such  warrants  and  other  cash  claims  as  he  shall  pro- 
duce and  deliver. 
And  with  indi-      6.   It  shall  also  be  the  duty  of  the  comptroller  to  raise  accounts, 
VI  uas.  ^^^  report  in  like  manner,  against    individuals,  who    may  become 

chargeable  on  any  of  the  warrants  or  vouchers  hereafter  paid  them, 
as  though  they  were  revenue  officers,  taking  care  not  to  blend  such 
reports  and  accounts  with  those  already  raised  or   made,  or  which 
may  be  hereafter  raised  and  made,  on  vouchers  in  the  comptroller's 
office. 
Public  moneys       7.  All  moneys  becoming  payable  to  the  public,  which  shall   not 
law  to'^be  paid  ^^  P^^*^  ^^^  ^"^  time,  but  shall  be  sued    for    and    recovered,  when 
to  the  treasurer  received  shall  be  paid  into  the  treasury  by  the  clerk  of  the  court, 
tobefiied^wnh^^'^  which  the  recovery  shall  be  had,  and  the  receipts   for  such   pay- 
the comptroller,  ments  shall  be  rendered  to  the  comptroller,  charged    and  filed  by 

him  as  in  other  cases. 

Balances  of  ac-      g.   It  shall  be  the  duty  of  the  comptroller,  on  the    first  day   of 

stated' annually  November  biennially,  to  strike  a  balance  against  the  treasurer   and 

and  reported.    ^\\  other  public  accountants  in  arrear,  and  report    a   statement    of 

the  same  to  the  General  Assembly,  with  whom  he  shall    settle    his 

own  accounts  for  the  warrants  and  other    claims    received  of  the 

public  treasurer,  and  in  the  year  when  the  General  Assembly  shall 

not  have  a  regular  session  he  shall  make  a  like  report  to    the  gov- 

'  ernor. 

Comptroller  to       9.   It  shall  be  the  further  duty  of  the  comptroller,  immediately 

a'^Thited'state^ ^^^^^  ^^^^  ^^'^^  ^^J  °^  November  in  every  year,  to  prepare  the  ac- 
ment  of  the  ac- count  of  the  pubhc  treasurer  of  this  State  with  the  State,  as  the 
vubUc  trealm-v  ^^^'^^  ^^^^^^  appear  on  the  books  of  the  comptroller's  office,  for  the 
year  preceding  the  first  day  of  November,  stating  the  balance  of 
the  money  in  the  treasury  at  the  last  settlement,  the  receipts  into 
the  treasury  within  the  year,  particularizing  the  moneys  and  account 
from  which  the  same  accrued  and  were  received,  the  amount  re- 
ceived from  each  respectively,  and  a  particular  statement  of  the 
disbursements  from  the  treasury  within  the  same  period,  and  the 
money  remaining  in  the  treasury  ;  and  he  shall  annex  to  said  ac- 
count a  statement  of  the  revenue  from  each  subject  of  taxation  in 
every  county  of  the    State,  of  which  account   and  statement  the 

5.  1792,  c.  368,  s.  4. 

6.  1792,  c.  3G3,  s.  5. 

7.  1792,  c.  36S,  s.  6.  , 

8.  1792,  c.  368,  s.  7. 

9.  1814,  C.  877. 


Chap.  XXIIL]  comptroller.  113 

comptroller  shall  have  printed  two  hundred  and  fifty  copies,  before 
the  meeting  of  the  General  Assembly  next  ensuing  the  first  day  of 
November  in  every  other  year,  and  dehver  the  same  within  the 
first  week  of  the  session  of  the  General  Assembly  to  the  clerk  of 
either  house,  subject  to  the  disposal  of  the  General  Assembly,  and 
in  each  year,  when  the  General  Assembly  shall  not  have  its  regu- 
lar session,  the  comptroller  shall,  immediately  after  the  first  day 
of  November,  furnish  a  like  account  and  statement  to  the  gover- 
nor, who  shall  thereupon  cause  the  same  to  be  pubUshed  in  five  of 
the  newspapers  of  this  State.  And  for  the  printing  and  publica- 
tion as  aforesaid,  the  treasurer  shall  pay  a  reasonable  compensation 
on  the  certificate  of  the  comptroller. 

10.  The  comptroller  is  empowered  and   authorized  to  adminis- ^^^^^^^^^^^^^g^ 
ter  an  oath  or  affirmation  to  accountants  and  witnesses,   in  support  an  oaih. 

of  the  justice  of  such  accounts  as  may  be  exhibited  to  him  for 
liquidation,  and  certify  the  same  accordingly. 

11.  No  claim,   draft  or  warrant  from  the   governor  or  any  one  No  warrants, 
else,  except  the  certificates  for  the  service  of  the  members  of  the  unless  first  en- 
General   Assembly  and  their  clerks   and  waiters,  and  the  certifi-^'^''®'^!".^,^'^, 
cates  of  the  clerks  of  the   superior  courts,  for  the  salaries  of  the  office  and  cer- 
judges  and  the  attorney  general  and  solicitors,   shall  be  paid  by  ^ifi^'l  ^y  ^™- 
the  treasurer,  collector  or  other  receiver  of  the   pubhc  revenue  or 

taxes,  until  such  claim,  draft,  or  warrant  shall  have  been  entered 
in  the  comptroller's  office,  and  charged  to  the  person  or  persons 
drawing  the  same,  with  the  comptroller's  order  endorsed  to  the 
treasurer  or  other  receiver  of  the  public  revenue  to  pay  the  same, 
and  no  claim,  warrant,  or  draft,  (except  as  before  excepted)  shall 
be  allowed  in  the  settlement  of  the  account  of  any  treasurer,  col- 
lector or  receiver  of  the  pubhc  revenue  or  taxes,  but  under  the 
foregoing  rules  and  regulations. 

12.  The  comptroller  is  authorized  and  required  to  procure  an  Instrument  for 
instrument  of  not  less  than  one  and  a  half  inches  in  diameter,  for  chersto'lfe  pro- 
cancelling  papers  in  such  a  manner  as  not  to  render  them  illegible,  cured. 

and  such  instrument  shall  be  hereafter  used  for  the  purpose  of  can- 
celling the  vouchers  in  the  comptroller's  office. 

13.  An  official  signed  by  the  comptroller  shall  be  received  as  <^o'?P^i'°ll^r's 
evidence  in  the  different  courts  in  this  State.  dence. 


10.  1783,  c.  192,  s.  1. 

11.  1787,  c.  268. 

12.  1817,  c.  954. 

13.  1792,  c.  368,  s.  11. 

VOL.    I.  16 


^^■^~-  el.  '?■  r.'-Al':^!::^' 


114 


CONSTABLES. 


[Chap.  XXIV 


CHAPTER    24. 


constabl.es 


AN  ACT  CONCERNING  CONSTABLES. 


Section 

1.  Number  of  constables  in  each  coun- 

ty. 

2.  Constables  to  be  elected  annually  in 

each  captain's  district — To  qualify 
before  the  county  court  and  give 
bond. 

3.  Judges  of  elections  how  appointed — 

Notice  to  be  given — Return  to  be 
made  to  the  county  court. 

4.  If  any  failure  in  the  election,  county 

courts  to  appoint ;  and  to  determine 
in  case  of  a  tie  or  contested  elec- 
tion. 


Section 

5.  Penalty  on  persons  not  qualified  vo- 

ting. 

6.  Vacancies  to  be  supplied  by  the  coun- 

ty courts. 

7 .  Bond  to  be  given  and  remedy  thereon . 

8.  Oaths  to  be  taken. 

9.  Pov/er  and  duty  of  constables. 

10.  Any  justice  may  in  certain  cases  ap- 
point a  special  constable. 

Penalty  for  acting  after  his  term  has 
expired. 

Constables  exempted  from  working 
on  roads. 


11. 


12. 


Number  of 
constables  in 
each  county. 


Constable  to  be 
elected  annu- 
ally in  each 
captain's  dis- 
.  trict. 


To  qualify  be- 
fore the  county 
court  and  give 
bond. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  there  shall  not  be  a  greater  number  of  constables  in  the  se- 
veral counties  in  this  State  than  one  in  each  captain's  district,  ex- 
cept the  districts  including  the  several  county  towns,  which  dis- 
tricts shall  be  entitled  to  two  constables  to  be  elected  as  other  con- 
stables are  hereinafter  directed  to  be  elected. 

2.  At  any  time  within  one  month  preceding  the  first  county 
court,  held  in  the  several  counties  after  the  first  day  of  January  in 
each  and  every  year,  the  inhabitants  of  each  captain's  district  with- 
in the  several  counties,  at  the  usual  place  of  holding  the  company 
muster  within  said  district,  shall  elect,  within  the  bounds  of  said 
company,  some  fit  and  suitable  person  to  act  in  the  capacity  of  a 
constable  for  the  succeeding  year,  who  shall  be  returned  and  re- 
commended to  the  court  of  pleas  and  quarter  sessions  of  said 
county,  as  hereinafter  directed,  and,  upon  such  return  being 
made  under  the  certificate  of  the  judges  appointed  to  hold  said 
election,  the  said  court  shall  proceed  to  qualify  such  person,  so 
returned,  to  act  as  constable  for  one  year  thereafter,  he  first  giv- 
ing bond  with  good  and  sufficient  security.  Provided,  that  no 
person  shall  be  entitled  to  vote  for  any  constable  of  any  such  town, 
except  he  shall  live  within  the  corporate  bounds  of  said  town, 
and  no  person  living  within  the  corporate  bounds  of  such  town, 
shall  be  entitled  to  vote  for  constable  for  the  district  in  which  such 
town  is  situated. 


133 


c.  5,  s.  1. 


1833,  e.  5,  s.  2. 


Chap.  XXIV.]  constables.  115 

3.  The  captains  of  companies  within  the  several  counties,  and  Judges  of  elec- 
in  their  absence  any  justice  of  the  peace  within  the  district,  shall,  pointed^  ^^" 
within  the  time  prescribed  by  the  provisions  of  the  last  section,  an- 
nually appoint  two  discreet  and  suitable  persons  to  hold  said  elec- 
tion, who  are  required  to   give   at  least  ten  days  notice  of  such  Notice  to  be 
election  in  two  or  more  public  places  in  such  district,  and  every  ^^'^^^• 

free  white  person  having  resided  for  six  months  next  preceding 
the  election  within  the  bounds  of  said  company  or  district,  who 
is  qualified  and  entitled  to  vote  for  members  of  the  house  of  com- 
mons in  the  State  legislature,  shall  be  entitled  to  vote  within  the 
district  in  which  he  shall  reside  in  all  such  elections,  and  the  per- 
son receiving  the  greatest  number  of  votes,  shall  be  considered 
duly  elected,  and  shall  be  returned  under  the  certificate  of  the  Return  to  be 
judges  to  the  first  court  of  pleas  and  quarter  sessions,  which  shall  |!J,unty°court. 
happen  in  said  county  after  said  election. 

4.  Should  any  person  elected  as  constable,  under  the  provisions  If  any  failure 
of  the  two  last  sections,  die,  or  from  any  other  cause  fail  to  qua-  countVcourtT' 
lify  and  to  give  the  necessary  security,  or  should  any  of  said  com-  to  appoint  and 
panies  fail  in  any   manner  to  hold   said  elections,  then  it  shall  be caJe^rfTue  (»• 
proper  for  the  court  which   shall  next  happen  as  aforesaid,  seven  contested  elec- 
justices  of  the  peace  being  present,  to   supply  any  vacancy   occa-  ^'°"" 
sioned  by  such  failure  ;   and  in  case  there  should  be   a  tie  in  any 

election  as  aforesaid,  then  the  court  shall  in  like  manner  determine  ; 
and  also  determine  in  all  cases  of  contested  elections. 

5.  Any  person  voting  at   any  such   election,  who   shall  not  by  Penalty  on 
law  be  quahfied  to  vote,  shall  be  liable  to  the  same  penalty  as  per-  qualified"*"^ 
sons  voting  at  elections  for  members  of  the  General  Assembly  of  voting, 
this  State,  who  are  not  qualified  according  to  law. 

6.  Upon  the  death  or  removal  of  any  constable  out  of  the  coun-  Vacancies  to 
ty  in  which  he  was  elected  or  appointed  constable,  it  shall  be  law-  the^c^imtv^  ^^ 
ful  for  the  justices  of  the  court  of  pleas    and    quarter   sessions,  court, 
seven  justices  being  present,  to  appoint  another  person  to  be  con- 
stable in  the  room  or  stead  of  the  constable  dead  or  removing  out 

of  his  county  as  aforesaid,  who  shall  be  qualified  and  act  until  the 
next  election  of  constables  as  above  prescribed. 

7.  The  bonds  required  from  constables  shall  be  made  payable  Bond  to  be 

to  the  State  of  North  Carolina,  in  the  sum  of  four  thousand  dol- f^^^^j^g^g^^^"^" 
lars,  conditioned  as  well  for  the  faithful  discharge  of  his  duty  as 
constable,  as  for  his  diligently  endeavoring  to  collect  all  claims, 
put  into  his  hands  for  collection,  and  faithfully  paying  over  all  sums 
thereon  received,  either  with  or  without  suit,  unto  the  persons  to 
whom  the  same  be  due,  upon  which  bonds  suits  may  be  brought 
and  remedy  be  had  in  the  same  manner,  and  under  the  same  rules, 
regulations  and  restrictions,  as  suits  may  be  brought  and  remedies 
had  upon  the  official  bonds  of  sheriffs  and  other  officers. 

8.  All  constables,  before  they  shah  be  qualified  to  act  as  such,  Oaths  to  be 

taken. 

3'  1S33,  c.  5,  s.  3. 

4.  1833,  c.  5,  s.  4. 

5.  1S33,  c.  5,  s.  6. 

6.  1741,  c.  24.  s.  7. 

7.  1818,  c.  980,  S.  1.— 1820,  c.  1045,  s.  2.— 1833,  c.  17. 

8.  1741,  c.  24,  S.  2.— 1791,  c.  342,  s.  1,  2. 


116 


CORONERS. 


[Chap.  XXV. 


shall  take,  before  the  county  courts,  the   oaths  prescribed  for  the 
qualification  of  public  officers,  and  also  an  oath  of  office. 
Powerandduty      9-   Each  and  every  constable,  so  appointed,  is  hereby  invested 
of  constables,   with  and  may  execute  the  same  power  and  authority  to  all  intents 
and  purposes,  as  constables  have  been  heretofore  by  law  invested 
with,  and  have  executed.     And  in  the  discharge  of  their   duties 
they  shall  and  may  execute  all  precepts  and  process  to  them  direct- 
ed upon  any  bay,  rivers  or   creeks  adjoining  their  counties,  and 
return  the  same  to  the  magistrate  or  magistrates  of  their  respective 
counties. 
Any  Justice  10.  For  the  better  executing  any  precept  or  mandate  in  extra- 

may  in  certain  ordinary  cases,  it  shall  and  may  be  lawful  for  any   iustice  of  the 

c&scs  Eippoint  3.  ...  .  JO 

special  consta-  peace  within  this  State  to  direct  any  such  precept  or  mandate,  in 
^^-  the  absence  of  or  for  want  of  a  constable,  to  any  person,  not  being 

a  party,  who  shaU  be  obliged  to  execute  or  endeavor  in  the  best 
manner  he  can  ta  execute  the  same,  under  the  like  penalty  that 
any  constable  would  be  liable  to. 
Penalty  for  act-  \\^  jf  any  Constable,  after  the  expiration  of  the  term  for  which 
term  has  ex-  he  has  been  appointed,  shall  presume  to  act  as  such  in  any  case, 
wherein  he  is  not  by  law  authorized,  he  shall  be  liable  as  for  a  mis- 
demeanor, and  on  conviction  thereof  shall  be  fined  and  imprison-, 
ed  at  the  discretion  of  the  court. 

12.  Every  constable  appointed  and  qualified  as  above  directed 
shall  be,  and  is  hereby  exempted  from  working  on  the  roads  for 
and  during  the  year  he  shall  be  constable. 

9.  1741,  c.  24,  s.  3.— 1790,  c.  330,  s.  1.  c  ,      t       '/  j  /i 

10.  1741,  c.  24,  s.  9.  l\nKQ.^.^'  It  y-tAt^rh  1 1/  CV  l\pU 

11.  1818,  c.  980,  s.  3. 

12.  1741,  c,  24,  s.  10. 


pired. 


Constables  ex- 
empted from 
working  on 
roads. 


Note  —  References  to  Adjudged  Cases. 

Sect.  7.  Dade  vs.  Morris,  3  Murph.  146.  Governor  vs.  Bailey,  3  Hawks,  463.  Go- 
vernor vs.  Franklin,  4  Hawks,  274.  Keck  vs.  Coble,  2  Dev.  489.  Governor  vs.  Da- 
vidson, 3  Dev.  361.     Governor  vs.  Caraway,  ib.  436. 


CHAPTER   25. 


CORONERS. 


AN  ACT  CONCERNING  CORONERS. 


Section 

1.  Coroners   to  be  appointed  by   the 

county  court. 

2.  Majority  of  the  justices  to  be  present. 

3.  Bond  to  be  given  and  renewed  an- 

nually. 

4.  Three  justices  in  certain  cases  may 

appoint. 


Section 

5.  Oaths  to  be  taken. 

6 .  Duty  of  the  coroner  in  holding  in- 

quests. 

7.  When  there  is  no  sheriif  the  coroner 

shall  act  as  sherLS*. 


Chap.  XXV.]  coroners.  117 

1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina^  and  it   is  hereby   enacted   by  the    authority  of  the  same, 

That  every  county  court  of  pleas  and  quarter  sessions  in  this  State  Coroners  lo  be 
shall  and  they    are  hereby  empowered   to   appoint  two  or   more  ^j^|°o"J''^  ^^ 
coroners  within  their  county,  if  they  shall  be  of  opinion  that  more  court. 
than  one  will  be  necessary. 

2.  In  the  appointment  of  any  coroner  or  coroners,  there  shall  ^^^^iprity  of  the 

1  ,         ^^..  /■!  ''    ■         .^.  n  ^^  r-i      justices  to  be 

be  present  a  majority  oi  the  actmg  justices  oi  the  peace  ot  the  present, 
county,    and   no  person    shall  be  deemed   duly   elected  without 
receiving  a  majority  of  the  votes  of  the  justices  present. 

3.  It  shall  be  the  duty  of  each  and  every  coroner  so  appointed  ^P^^  ^°  ^® 

1         1         1        /Y-    •  ■       •        1  c  1  1  given  and  re- 

to  give    bond  and  sumcient  security  in  the  sum  oi  two  thousand  newed  annu- 
dollars,  payable  to   the  State   of  North   Carolina,  to  be  approved  ^%- 
by  the  court,  and  it  shall  be  their  further  duty  to  renew  their  bonds 
the  first  court  after  the  first  day  of  April  in  each  year,  or  they 
shall  be  no  longer  considered  capable  of  holding  said  office. 

4.  Whenever  any  death  shall  happen  in  any  county  in  this  State  Three  justices 
that  shall  render  it  necessary  for   a  coroner   to  act  in  his  official  maTappoiEa!*^^ 
capacity,  and  there  shall  be  no  coroner  in  such  county,  it  shall  be 

the  duty  of  any  three  justices  of  the  peace  of  such  county  to 
appoint  some  fit  person  to  act  as  coroner,  and  such  person  so 
appointed  is  hereby  empowered  so  to  act,  and  such  person  shall 
moreover  be  entitled  to  the  same  compensation  as  is  allowed  by 
law  to  a  coroner  for  such  service,  and  shall  be  subject  to  the  same 
penalties  as  other  coroners  are  subject  to,  and  shall  hold  his  office 
until  the  next  court  of  pleas  and  quarter  sessions  of  his  county. 

5.  Each  and  every  coroner  shall,  before  entering  upon  the  dis- ^^^^^ '^o  ^^ 
charge  of  the   duties  of  his  office,   take  the   prescribed  oaths  for 

all  public  officers,  and  also  an  oath  of  office. 

6.  It  shall  be  the  duty  of  the  several  coroners  within  this  State,  Duty  of  the 
whenever  they  have  knowledge  of  themselves  or  are  informed  by  inl^i^qucsts 
others  that  any  person  is  slain  or  suddenly  dead,  either  by  drown- 
ing or  otherwise,  to  go  to  the  place  where  such  person  is  so  slain 

or  suddenly  dead,  and  forthwith  summon  a  jury  of  good  and  lawful 
men,  whereupon  the  said  coroner,  upon  oath  of  said  jury  at  the 
place  where  the  person  is  so  slain  or  suddenly  dead  as  aforesaid, 
shall  make  inquiry  when,  how  and  by  what  means  such  deceased 
person  came  to  his  death,  and  his  name  if  it  was  known,  together 
with  all  the  material  circumstances  attending  his  death  ;  and  if  it 
shall  appear  that  the  deceased  was  slain,  then  who  was  guilty  either 
as  principal  or  accessory,  if  known,  or  in  any  manner  the  cause 
of  his  death.  In  like  manner  it  is  to  be  inquired  concerning  them 
that  be  suddenly  dead,  after  such  bodies  are  seen,  in  what  manner, 
at  what  time,  and  by  what  cause  such  death  was  occasioned  ; 
and  as  many  persons  as  are  found  culpable,  by  inquisition  in 
any  of  the  manners  aforesaid,  shall  be  taken  and  delivered  to 
the  sheriff  and  committed  to  jail  ;  and  such  persons  as  are  found 

1.  1777,  c.  118,  s.  14. 

2.  1S16,  c.  901,  s.  1. 

3.  1820,  c.  1047,  s.  1,  2. 

4.  Ift22,  c.  1170. 

5.  1791,  c.  342,  s.  1,  2. 
6<  4  Edw.  1,  Stat.  2. 


118 


CORPORATIONS.  [ChAP.  XXVI. 


to  know  any  thing  of  the  matters  aforesaid  and  are  not  culpable 
themselves,  shall  be  bound  in  a  recognizance  with  sufficient 
security  to  appear  at  the  next  superior  court  of  law  to  give 
evidence  ;  of  all  which  matters  and  things  the  coroner  aforesaid 
must  note  up  a  record  of  his  inquisition  signed  by  the  jurors, 
and  return  the  same  to  the  next  superior  court  of  law  of  his 
proper  county.  If  upon  any  inquest,  the  jury  doubt  as  to  the 
manner  in  which  death  has  ensued,  and  a  post  mortem  examina- 
tion of  the  body  be  desired  by  any  one  of  them,  the  coroner 
is  empowered  to    summon    a    physician  for    the    purpose,   who 

Where  there  is  shall  be  paid  by  the  county  for  this  service. 

no  sheriff,  the        7^   jf  ^^  aj-,y  jj^jg  there  shall  be  no  person  properly  qualified 

coroner  sriEiJU  .        .  x       i.        j      i 

act  as  sheriff,  to  act  as  sheriff  in  any  county  of  this  State,  then  it  shall  and 
may  be  lawful  for  the  coroner  of  such  county,  and  he  is  hereby 
required,  to  execute  all  process,  civil  or  criminal,  lawfully  issu- 
ing on  judgments,  orders  or  sentences  of  any  court  within  the 
same,  until  some  person  shall  be  appointed,  properly  qualified 
to  act  as  sheriff  in  said  county,  and  such  coroner  shall  be  under 
the  same  rules  and  regulations,  and  subject  to  the  same  fines 
and  forfeitures  as  sheriffs  are  by  law  for  neglect  or  disobe- 
dience of  the  same  duties.  ^  r     /   •  <  /         /  / 

7.    1779,  c.  156,  s.  2.  V- h  e-^i  A^c?. 


CHAPTER    26. 


CORPORATIONS 


AN  ACT  GONCERNEVG  CORPORATIONS. 


Section 

1.  Corporations  how  to  convey  lands. 

2.  In  suits  against  corporations  a  sum- 

mons to  issue. 

3.  On  whom  the  summons  to  be  served 

— How  returned. 

4.  Suits  in  equity  how  proceeded  on. 

5.  What  execution  to  issue. 

6.  When  and  how  an  information  may 

be  filed  against  a  corporation. 

7.  Court  may  require   a  bond  to  be  giv- 

en by  the  relators. 

8.  How  the  supreme  court  may  proceed 

to  ascertain  facts. 

9.  Appeal   allowed    from  the   superior 


Section 

court — Judgment  of  dissolution  or 
forfeiture  shall  not  extinguish 
debts ;  but  a  receiver  to  be  appoint- 
ed. 

10.  Attorney  genera]  may  file  a  bill  in 

equity  to  restrain  corporations 
from  exercising  powers  not  grant- 
ed, and  to  bring  certain  officers  to 
an  account,  &c. — Provisos. 

11.  Corporations  how  long  to  exist. 

12.  What  length  of  non-user  to  be  a  for- 

feiture of  corporate  privileges. 

13.  Shares   in    incorporated  joint   stock 

companies  to  be  personal  estate. 


1.   Be  it  enacted  by  the  General  Assembly  of  the  State  of  JSTorth 
Corporations     Carolina,   and  it  is  hereby  enacted  by  the   authority  of  the  same, 

how  to  convey    mi        •       1     n  1       i        r  i   /■  ■  1        1     1        1        i 

lands.  i  hat  It  shall  be  lawiul  tor  any  corporation  to  convey  lands  by  deed 

1.    1793,  c.  514,  s.  4. 


Chap.  XXVL]  corporations.  119 

of  bargain  and  sale,  sealed  with  the  common  seal  of  said  corpora- 
tion, and  signed  by  the  president  or  presiding  member  or  trustee 
of  said  corporation,  and  two  members  or  trustees  thereof,  in  the 
presence  of  two  witnesses  ;  and  such  deed,  when  proved  in  the  > 
usual  form  prescribed  for  other  conveyances  for  lands,  shall  be 
registered  in  the  register's  office  of  the  county  where  the  land  lies  in 
hke  manner  with  other  deeds. 

2.  In  all  actions  or   suits,  which  may  be  instituted  against  any  ^"^  ^^^^^  ??*"*^'^ 

I      r    1  PI  1  11      corporations,  a 

corporation,  mstead  oi  the  process  lormerly  used  to  compel  the  summons  to  is- 
appearance  of  such  corporation,  it  shall  be  sufficient  to  issue  a^^^- 
summons  to  the  sheriff  or  other  proper  officer,  reciting  the  cause 
of  action,  and  summoning  the  said  corporation  to  appear  and  an- 
swer the  same  on  the  proper  return  day,  which  summons  shall  be 
returnable  in  the  like  manner  and  subject  to  the  same  rules  and  re- 
gulations as  other  original  process. 

3.  If  a  summons  be  issued  as  aforesaid  against  any  banking,  turn- On  whom  the 
pike,  navigation,  insurance,  or  other  incorporated  company,  ser-  s™^°°^  ^°  ^^ 
vice  on  the  president  or  other  head,  or  in  his  absence  on  the  ca- 
shier or  treasurer,  or  in  the  absence  of  both  the  president  or  chief 

officer  and  the  cashier  or  treasurer,  then  on  any  director  of  such 
company,  such  president  or  other  officer  being  at  the  time  of  such 
service  in  the  county  in  which  he  usually  resides,  shall  be  deemed 
sufficient  service  of  the  summons  ;  and  if  the  summons  be  issued 
against  the  corporation  of  any  city  or  town,  service  on  the  chief 
magistrate,  or  in  his  absence  on  any  commissioner  of  such  city  or 
town,  such  chief  magistrate  or  commissioner  being  at  the  time  of 
such  service  within  the  limits  of  such  corporation,  shall  be  deem- 
ed sufficient  ;  and  in  like  manner  the  service  of  such  summons  on 
the  president,  and,  in  his  absence,  on  any  trustee  of  any  incorpo- 
rated college  or  academy,  or  on  the  chief  officer  of  any  other  cor- 
poration whatever,  or  for  want  of  such  chief  officer  on  any  mem- 
ber of  such  corporation,  such  president,  trustee,  chief  officer,  or 
other  member  being  at  the  time  of  service  within  the  county  in 
which  he  usually  resides,  shall  be  deemed  sufficient;  and  on  the  re- 
turn of  such  summons  served  in  manner  aforesaid,  in  any  of  the  said 
cases,  the  same  proceedings  to  a  final  judgment  shall  be  had  against 
such  corporation  as  are  had  in  other  suits  at  law,  after  the  return 
of  a  capias  ad  respondendum  executed  ;  on  every  summons  serv-  How  returned. 
ed  as  aforesaid,  the  sheriff  or  other  proper  officer  shall  make  re- 
turn distinctly  on  whom  the  same  hath  been  executed,  otherwise 
such  service  shall  not  be  deemed  valid. 

4.  Suits  in  equity  against  corporations  shall  commence  by  sub-  Suits  in  equity 
poena,  and  the  service  of  such  subpoena  and  all  interlocutory  or-  ^°^  proceeded 
ders  and  decrees  shall  be  made  in  the  same  manner  and  under  the 

same  restrictions  as  is  herein  before  provided  for  the  service  of  a 
summons  in  a  suit  at  law,  and  the  same  proceedings  to  a  final  de- 
cree shall  be  had  against  such  corporations  as  are  had  in  other  suits 
in  equity. 

5.  If  any  judgment  at  law  or  decree  in  equity  shall  be  rendered  ^n^toTssue" 

2.  18-20,  c.  10o6,  s.  1. 

3.  1820,  c.  1056,  s.  2. 

4.  1820,  c.  1056,  s.  3. 

5.  1820,  c.  1056,  s.  4. 


120 


CORPORATIONS.  [ChAP.  XXVI. 


When  and  how 
an  information 
may  be  filed 
against  a  cor- 
poration. 


Court  may  re- 
quire a  bond  to 
be  given  by  the 
relators. 


How  the  su- 
preme court 
may  proceed  to 
ascertain  facts. 


Appeal  allowed 
from  the  supe- 
rior court. 

Judgment  of 
dissolution  or 
forfeiture  shall 
not  extinguish 
debts  ;  but  a 
receiver  to  be 
appointed. 


against  any  corporation,  it  shall  be  lawful  for  the  plaintiff  or  com- 
plainant in  the  suit  to  sue  out  either  a  distringas  or  fieri  facias  as 
he  may  think  proper,  and  the  said  writs  of  distringas  or  fieri  fa- 
cias may  be  levied  as  well  on  the  current  money  as  on  the  goods, 
chattels,  lands  and  tenements  of  the  said  corporation. 

6.  Whenever  it  may  be  deemed  proper  by  the  legislature  of 
this  State,  or  the  governor  or  attorney  general  for  the  time  being, 
that  a  judicial  inquiry  shall  be  instituted  to  ascertain  whether  any 
corporation  by  non-user  or  abuser  of  its  franchises,  has  incurred  a 
forfeiture  of  its  charter,  or  has  been  dissolved  by  the  surrender 
of  its  franchises,  or  any  other  mode,  it  shall  be  lawful  for  the  at- 
torney general,  in  behalf  of  the  State,  to  fde  an  information  either 
in  the  supreme  court,  or  in  the  superior  court  of  law,  for  the  coun- 
ty wherein  the  general  meetings  of  the  members  or  the  officers  of 
such  corporation  have  usually  been  holden  or  by  law  ought  to  be 
holden,  setting  forth  briefly  and  without  technical  forms  the  grounds, 
on  which  such  forfeiture  or  dissolution  is  alleged  to  have  been  in- 
curred or  to  have  taken  place,  and  thereupon  it  shall  be  the  duty  of 
the  said  court  to  take  such  order,  for  enabling  those  interested  in 
the  charter  or  continuance  of  the  corporation  to  have  due  notice  of 
and  make  defence  against  such  information,  and  make  all  such  rules 
for  procuring  and  taking  evidence,  and  having  a  fair  trial  of  the 
controverted  facts,  as  shall  be  deemed  just  and  reasonable. 

7.  When  the  said  information  shall  be  filed  by  the  attorney  ge- 
neral in  consequence  of  the  relation  of  any  individual  or  individ- 
uals, it  shall  be  lawful  for  the  court  in  its  discretion  to  require  bond 
with  approved  securities  from  the  relator  or  relators,  to  indemnify 
the  corporation  against  all  the  costs  of  such  information. 

8.  If  such  information  be  filed  in  the  supreme  court,  it  shall  be 
lawful  for  said  court,  in  regard  to  any  facts,  upon  which  the  find- 
ing of  a  jury  may  be  necessary,  either  to  cause  such  jury  to  be 
empanelled  before  the  supreme  court,  or  to  send  the  issue  to  be 
tried  before  the  judge  of  the  superior  court  of  any  county  of  the 
State. 

9.  From  the  judgment  which  may  be  rendered  in  the  superior 
court,  it  shall  be  lawful  for  either  party  to  appeal  to  the  supreme 
court ;  and  on  a  final  judgment  of  dissolution  or  forfeiture  being 
rendered,  such  dissolution  or  forfeiture  shall  not  extinguish  the 
debts  due  to  or  from  the  corporation,  but  the  court  rendering  such 
final  judgment  shall  proceed  to  appoint  a  receiver  or  receivers, 
who  shall  have  full  power  to  collect,  in  his  or  their  own  names, 
all  the  debts  due  to  said  corporation,  to  take  possession  of  all  its 
property,  and  to  sell,  dispose,  and  distribute  the  same  in  order  to 
pay  off  the  creditors  of  said  corporation,  and  afterwards  to  reim- 
burse the  stockholders  thereof,  under  such  rules,  regulations,  pro- 
visions and  restrictions  as  the  court  rendering  such  final  judgment 
shall  direct. 


6.  1831,  c.  24,  s  I. 

r.  1531,  c.  24,  s.  2. 

S.  1831,  c.  24,  s.  3. 

9.  1831,  c,  24,  s.  4. 


Chap.  XXVL]  corporations.  '  121 

10.  It  shall  be  lawful  for  the  attorney  general,  as  herein  before  Attorney  gen- 
directed,  to  file  a  bill  in  the  nature  of  a  bill  in  equity,  either  in  the  biui^equity  to 
supreme  court  of  this  State,    or  in  the  superior  court  of  equity  of  restrain  corpo- 
the  county,   as  herein   before   directed,  to   restrain  by   injunction  exe^dsin^pow- 
any   corporation   from   assuming   or  exercising   any   franchise,    or  ers  not  granted, 
transacting  any  business,  not  allowed  by  its  charter,  to  restrain  any  certain  o'ffifers 
individuals   from   exercising   corporate   franchises  not  granted,   to  ^  an  account, 
bring  the  directors,  managers,  and  officers  of  a  corporation,  or  the 

trustees  of  funds,  given  for  a  public  or  charitable  purpose,  to  an 
account  for  the  management  and  disposition  of  the  property  con- 
fided to  their  care,  to  remove  such  officers  or  trustees  upon  proof 
of  gross  misconduct,  to  secure  for  the  benefit  of  all  interested  the 
property  or  funds  aforesaid,  to  set  aside  and  restrain  improper 
ahenations  thereof,  and  generally  to  compel  the  faithful  perform- 
ance of  duty,  to  prevent  malversation,  peculation  and  waste  ;  and 
it  shall  and  may  be  lawful  for  the  said  courts,  upon  the  said  bill  be- 
ing filed,  to  make  all  such  orders,  rules  and  decrees,  as  may  be 
necessary  to  accomplish  the  ends  of  justice  and  as  are  consistent 
with  the  usage  of  a  court  of  equity.  Provided  alioays^  that  the  Provisos, 
decree  of  a  superior  court  of  equity  shall  be  liable  to  be  re-exam- 
ined on  appeal  in  the  same  manner  as  cases  between  individuals. 
Jlnd  provided  also,  that  the  supreme  court  shall  have  the  same 
power  to  cause  a  jury  to  be  empanelled,  or  in  directing  issues  to 
be  tried  elsewhere  as  is  herein  befoj'e  provided.  Provided  ahoays, 
That  in  case  of  fraud  by  the  president,  directors,  managers  or 
stockholders  in  any  cor])oration,  the  said  court  shall  have  full  pow- 
er to  render  personally  hable  to  creditors  and  others  injured  there- 
by, such  of  the  directors,  managers  and  stockholders  as  may  have 
been  concerned  in  such  fraud. 

11.  No  body  corporate,  hereafter  to  be  established  in  this  State,  Corporations 
shall   exist  for  a   longer  term  than  thirty  years,   unless  otherwise  ^''^^  ^°"»  ^°  ^-^" 
provided  in  the  act  creating  the  same. 

12.  When  any  act  shall  have  passed  creating  a  body  politic  and  what  length  of 
corporate,  and  the  corporators  shall,   for  the  period  of  two  years,  ^™"^f^^?jyjg  |^f 
neglect  or   fail  to  organize   the  company  and  carry   into  effect  the  corporate  priv- 
intent  of  the  act,   or  when  organized,  if  they,  at  any  time  for  two  ^  ^^®^' 
years  together,  shall   cease  to  act  as   a  body  corporate,   then  such 

disuse  of  their  corporate  privileges  and  powers  shall  be  considered 
and  taken  as  a  forfehure  of  the  charter. 

13.  The  shares  of  stock,  in  all  incorporated  joint  stock  compa- shares  in  in- 
nies  in  this  State,  shall  be  and  they  are  herebv  declared  to  be  per- ?°rP°''^/*''| 

1  1  111111-  1  J°'"'  stock 

sonal  estate  ;  and  as  such  may  be  held  by  aliens,  and  may  be  trans-  companies  to 
ferable,   under  such  rules   and   regulations   as  the   corporation  to  |'j^jP*^'^®°'^^^  ^^' 
which  the  stock  pertains  may  from  time  to  time  establish,  the  same 
not  being  incompatible  with  the  constitution  and  laws  of  this  State. 

10.  1831,  c.  24,  s.  5. 

11.  1836,  c.  10,  s.  1. 

12.  1836,0.  10,  s.  2. 

13.  1836,0.  11. 

VOL.    I.  16 


122 


COUNTY   BOUNDARIES.       [ChAP.  XXVII. 


CHAPTER  27. 


COUNTY  BOUNDARIES. 


AN   ACT    AUTHORIZING    COUNTY    COURTS    TO    SETTLE   DISPUTED 
BOUNDARIES  BETWEEN  COUNTIES. 


Section 

1.  In  case  of  disputed  lines  between 
counties,  the  county  court  of  each 
county  may  appoint  commissioners 
to  settle  them. 


Section 
2.  Commissioners  to  be  sworn- 
paid. 


-To  be 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 

Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same,  That 

In  case  of  dis-  whenever  there  shall  be  any  dispute  concerning  the  dividing  line  be- 

puted  lines  be-  tween  counties,  it  shall  be  lawful  for  the  county  courts  of  each  coun- 

tween  counties,         .  i-i         t  c-it  ••  ci-- 

the  county       ty,  interested  m  the  adjustment  oi  said  line,  a  majority  ot  the  justices 
courts  of  each  consenting  thereto,  to  appoint  one  or  more  commissioners,  on  the 
point  commis-  part  of  each  county,  to  settle  and  fix  the  line  in  dispute  ;  and  their 
sioners  to  set-  report,  when  ratified  by  a  majority  of  the  justices  of  each  county, 
shall  be  conclusive  of  the  location  of  the  true  fine,  and  shall  be 
recorded  in  the  register's  office  of  each  county,   and  in  the  office 
of  the  secretary  of  state. 
Commissioners      2.   The  commissioners,  before   entering  on  the  duties  assigned 
Jo^be^sworn—  them,  shall  be  sworn  before  a  justice  of  the  peace,  and  shall  be  al- 
lowed a  reasonable  compensation  for  their  labors. 


To  be  paid. 


/^4r   (^  /i"'  I 


2  i-.l'f^ 


1836,  c,  3,  s.  1. 
1836,  c,  3,  s.  2. 


0(^   cj  . 

oA   ). 

// 

/3. 

^. 

f  o 

/^ 

CA.    zt- 

25- 

^<t 

z/j 

CHAPTER  28. 

COUNTY  REVENUE  AND 
CHARGES. 


AN  ACT  CONCERNING  COUNTY  REVENUE  AND  COUNTY  CHARGES. 


Section 

1 .  County  courts  to  lay  taxes  for  county 

purposes. 

2.  County  taxes  to  be  collected  by  the 

sheriff  in  like  manner  as  the  State 
taxes. 

3.  Sheriff  to  give  bond  for  the  collection 

of  the  county  and  poor  taxes. 


Section 

4.  All  fines,  &c.  to  be  paid  over  to  the 

county  trustee. 

5 .  Tax  on  attorneys'  licenses — to  whom 

to  be  paid. 

6.  Tax  on  suits  at  law — how  payable. 

7.  Tax  on  suits  in  equity — how  paya- 

ble. 


Chap.  XXVIIL]  county  revenue,  etc. 


123 


Section 

8.  Sheriff  shall  collect  and  pay  over  all 

fines,  amercements,  &c. 

9.  Clerk  to  render  an  annual  statement 

of  fines,  &c. 

10.  Penalty  on  clerk,  sheriff,  &c.,  for 

failing  to   pay  over    county  mo- 
neys. 

11.  Clerks  and  clerks  and  masters   to 

give    bond  for    the   payment  of 
taxes,  &c. 

12.  Costs  of  State  prosecutions  to  be 

paid  by  the    counties   in   certain 
cases. 

13.  Witnesses  for  the  State  to  be  paid 

by  the  counties  in  certain  cases. 


14. 


County  wherein  the   offence  was 


committed    to   pay    costs — Such 
county  to  receive  the  fines,  &c. 

15.  County  to  pay  the  costs  of  inquests. 

I G.  County  courts  may  make  allowances 
to  certain  officers  for  extra  servi- 
ces. 

17.  Clerk  shall  number  all  claims,  &c. 
against  the  county  in  a  book,  and 
furnish  the  chairman  of  the  court 
with  a  copy  annually. 

13.  Penalty  on  the  clerk  for  failing  to 
number  claims,  &c. — His  compen- 
sation for  performing  this  service. 

19.  A  statement  of  moneys  received  for 
county  purposes,  to  be  set  up  in 
the  court  house. 


Section 

20.  County  court  may  lay  taxes  for  the 

payment  of  the  patrol. 

21.  County  court  may  lay  taxes  for  the 

payment  of  jurors. 

22.  Power  of  the  county  court  in  dis- 

posing of  the  county  funds. 

23.  County    court  may  appoint  three 

persons  to  act  as  a  committee  of 
finance — Duty  and  powers  of  such 
committee. 

24.  Committee   to  make   investigation 

of  all  the  financial  concerns  of  the 
county,  and  make  return  to  the 
court  at  the  end  of  each  financial 
year — Pay  of  the  committee. 

25.  Any  officer  failing  to  settle  after  re- 

ceiving ten  days  notice,  to  forfeit 
one  hundred  dollars. 

26.  Oath  to  be  taken  by  the  members 

of  the  committee. 

27.  Penalty  for  refusing  to  serve  on  the 

committee. 

28.  Officers  having  claims  against  the 

county  how  to  proceed. 

29.  Clerk  to  furnish  the  committee  with 

a  statement  of  the  sums  allowed 
by  the  county  court. 

30.  Cormnittee   may  institute  suit  for 

the  recovery  of  money  belonging 
to  the  county. 

31.  County  court  to  fill  vacancies  in  the 

committee. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  ofJsTorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  the  justices  of  the  several  county  courts,  a  majority  of  the 
acting  justices  of  the  county  being  present,  shall,  at  the  first  county 
court,  which  shall  happen  after  the  first  day  of  January  in  each 
and  every  year,  lay  a  tax  on  the  lands  with  their  improvements, 
and  a  tax  on  the  other  subjects  of  State  taxation,  for  the  purpose 
of  paying  the  county  charges. 

2.  The  county  taxes  shall  be  collected  by  the  sheriffs  of  the  re- 
spective counties,  who  shall  be  entitled  to  the  same  commissions 
and  subject  to  the  same  rules,  regulations  and  restrictions,  in  re- 
spect to  their  settlement  of  the  county  tax,  with  the  county  trustees, 
as  they  are  in  their  settlements  of  the  public  tax,  with  the  treasu- 
rer of  the  State  ;  and  they  shall  also  settle  with  the  wardens  of  the 
poor,  and  the  trustees  of  their  respective  counties,  for  the  taxes 
on  the  unlisted  property  in  their  said  counties,  under  the  same 
rules,  regulations  and  restrictions,  as  they  are  bound  by  law  to  ac- 
count with  the  comptroller  of  the  State. 

3.  Each  and  every  sheriff  within  this    State,    shall  enter  into 

1.  1790,  c.  331,  s.  1.— 1S14,  c.  872,  s.  13. 

2.  1798,  c.  509,  s.  2.— 1311, c.  823. 

3.  1798,  c.  509,  s.  1. 


County  courts 
to  lay  taxes  for 
county  pur- 
poses. 


County  taxes 
to  be  collected 
by  the  sheriff 
in  like  manner 
as  the  State 
ta.xes. 


Sheriff  to  give 
bond  for  the 
collection  of 
the  county  and 
poor  taxes. 


124  COUNTY  REVENUE,  ETC.    [CflAP.  XXVIII.  I 

bond,  with  sufficient  security,  payable  to  the  State  of  North  Caro- 
lina, for  the  due  collecting  and  accounting  for  the  county  and  poor 
tax,  as  well  as  the  pubhc  tax,  which  said  bonds  shall  be  executed 
previous  to  their  entering  on  the  execution  of  their  office. 
All  fines,  &c.         4,   ji^\\  fines,  forfeitures,  amercements  and  tax  fees  on  suits  and 

to  be  paid  over     ^  ■>  i-  n  •        1  •  i 

to  the  county    attorneys'  licenses,  as  well  m  the  superior  as  county  courts,  also 
trustee.  all  tax  fees  on  suits  in  equity,  shall  be  accounted  for  and  paid  to 

the  county  trustees,   for  the  purpose  of  defraying  the   costs  of 
State  prosecutions  and  the  contingent  expenses  of  the  county. 
Tax  on  attor-        5.   The  following  tax  shall  be  imposed  upon  attorneys'  licenses, 
?o^whom"to^be  ^^  ^^^  •  ^^^  ^  license  to  practise  in  the  superior  courts,  ten  dol- 
paid.  lars,  for  a  license  to   practise  in  the  county  courts,  ten  dollars  ; 

which  tax  on  attorneys'  hcenses,  shall  be  paid  to  the  clerk   of  the 
court,  where  the  attorney  shall  first  exhibit  his  hcense  for  admit- 
tance to  practice,   to  be  accounted  for  by  said   clerk,   under  the 
same  rules,  regulations  and  restrictions  as  he  is  obhged  to  account 
for  taxes  on  suits. 
Tax  on  suits  at      6.   In  all  civil  suits  and  indictments  tried  or  disposed  of,  either 
^^^       P^^"   in  the  county   or   superior   courts,   the   party    or  parties   cast  or        A 
convicted  shall  pay  a  tax  fee  of  one  dollar,  which  several   sums        * 
the  respective  clerks  shall  pay  over  to   the  county  trustee,  within 
three  months  after  the  same  shall  be  received  by  them  :  Provided^ 
nevertheless^  the  plaintiffs  in  civil  suits  shall  not  be  required  to  pay 
a  tax  fee  on  writs  as  heretofore. 
Tax  on  suits  in      7.   In  suits  in  equity  a  tax  of  two  dollars  shall  be  assessed  and 
^I'^ity  ~ '^o^    paid  for  every  subpoena  to   answer  any  bill  in  equity,  which  tax 
shall  be  accounted  for  and  paid  over  to  the  county  trustee  by  the 
clerk  and  master,  in  hke  manner  as  tax  fees  on  suits  at  law  are  ac- 
counted for  and  paid  over  by  the  clerks  of  said  courts. 
Sheriff  shall  8.   The  sheriffs   of  the  respective   counties  shall   collect   and 

over  all  fines,^'^  receive  all  fines,  amercements,  forfeited  recognizances,  and  forfeit- 
amercements,    ures  on  penal  Statutes,   imposed,  adjudged  or  decreed  by  any   of 
the  courts  of  this  State  ;  and  all  sums  of  money,  by  them  so  col- 
lected and  received,  shall  pay  over  to  the  respective  county  trus- 
tees or  wardens,  entitled  to  receive  the  same,  within  three  months 
after  such  moneys   shall  be  so  collected  and  received,  and  shall 
return  a   transcript,   at  the  time  of  settlement  with  the  trustees, 
which  shall  contain  the  names  of  all  persons,  from  whom  fines, 
forfeitures,  and   amercements   shall  have  been  collected,  and  the 
Eimount  from  each  person  so  received. 
Clerk  to  render      9.   The  clerks  of  the  several  courts  shall  annually,  on  or  before 
stat^ement  of     ^^®  ^^^^  ^^Y  °^  January  in   each  and  every  year,  make  a  full  and 
fines,  &c.         complete  return  to  the  respective  county  trustees  of  all  tax  fees, 
fines,  forfeitures,  and  amercements,   which   shall  have  been  im- 
posed, adjudged,   or   decreed  in   the  preceding  year,  as  well  the 
names  of  the  persons  who  shall  have  paid  fees  as  of  all  those  who 

4.  1801,  c.  587.— 1809.  c.  769,  s.  1.— 1810,  c,  799,  s.  2. 

5.  1784,  c  220,  s.  2.— 1806,  c.  698,  s.  1. 

6.  1830,  c.  1,  s.8. 

7.  1786,  c.  253,  s.  10. 

8.  1830,  c.  1,  s.  11  and  12. 

9.  1830,  c.  1,  s.  13. 


Chap.  XXVIIL]  county  revenue,  etc.  125 

have  been  fined,  amerced,  or  adjudged  to  have  forfeited  their 
recognizance. 

10.  If  any  clerk  of  any  of  the  superior  or  county  courts,  or  any  penalty  on 
clerk   and  master   in  equity,  or   any  sheriff,  shall  fail  or  neglect  to  clerk,  sheriff, 
account  for  and  pay  over,  to  the  county  trustees  or  wardens  of  the  to^^pay'^ove/'^^ 
poor    of  their  respective    counties,    any  tax  fees    on    attorneys'  county  moneys, 
licenses   or  suits,  or  any  fines,   forfeitures   and  amercements,    as 

required  by  this  act,  or  fail  or  neglect  to  make  the  returns  specified 
in  this  act,  the  person  so  offending  shall  forfeit  and  pay  five  hun- 
dred dollars,  to  be  recovered  by  the  county  trustee  for  the  use  of 
the  county. 

1 1 .  The  clerk  of  each  and  every  county  and  superior  court  of  Clerks  and 
law,  and  the  clerk   and  master   in   equity,    shall   give   bond   with  masterslo  o-ive 
approved  security  to  the  court  whereof  he  is  clerk,  payable  to  the  bond  for  the 
State  of  North  Carolina,  in  the  sum  of  four  thousand  dollars,  con- {"j^^^^^^" 
ditioned  for  the  due  performance  of  the  duties  enjoined  in  this  act. 

12.  In  all  criminal  prosecutions  in  the  county  or  superior  courts,  Costs  of  State 
when  the  defendant  shall  be  acquitted  and  the  court  shall  not  think  P™^°?j'?;°"V 

1  be  paid  by  the 

proper  to  order  the  prosecutor  to  pay  the  costs,  or  where  the  counties  in  cer- 
defendant,  if  convicted,  shall  be  insolvent  and  incapable  to  pay  ^^"^  cases, 
costs,  the  sheriff,  clerk  or  constable,  who  may  be  entitled  to  fees 
in  said  prosecutions,  shall  render  to  the  county  court  an  accurate 
fee  bill,  enumerating  the  costs  due  each  officer  ;  and  upon  pre- 
senting the  same  to  the  county  court,  it  shall  be  and  is  hereby 
declared  to  be  the  duty  of  such  court  to  order  and  decree,  that  the 
county  trustee  shall  pay  to  them  and  each  of  them  the  amount  of 
their  respective  fees,  as  contained  in  the  fee  bill  aforesaid  :  Pro- 
vided^ that  the  counties  shall  pay  the  clei'ks  and  sheriffs  half  their 
lawful  fees  only,  except  in  capital  and  clergiable  felonies,  or  pros- 
ecutions for  forgery,  perjury  and  conspiracy. 

13.  All  witnesses,  summoned  or  recognized,  on  behalf  of  the  Witnesses  for 
State,  to  attend  on  any  prosecution,  either  in  the  superior  or  county  pa^ffb^*^!}!"  ^^ 
courts,  where  the  defendant  by  law  shall  not  be  bound  to  pay  the  counties  in  cer- 
same,  and  the  court  do  not  order  them  to  be  paid  by  the  prosecu- ^^''^  ^'^®^^- 
tor,  shall  be  paid  by  the  county  in   which  said  prosecution  was 
commenced.     And  in  all  cases,   wherein  witnesses  may  be  sum- 
moned   or  recognized  to  attend  any  of  the   superior   or  county 

courts,  to  give  evidence  in  any  prosecution  in  behalf  of  the  State, 
and  the  prosecuting  officer  or  the  court  shall  discharge  the  defend- 
ant or  defendants,  or  in  cases  where  the  defendant  shall  break  jail 
and  shall  not  afterwards  be  retaken,  the  court  may,  if  under  the 
circumstances  it  shall  appear  to  be  just,  order  the  certificates  of 
attendance  to  issue  to  said  witnesses,  to  be  paid  as  other  witnesses 
in  such  prosecutions  are  entitled  to  be  paid. 

14.  In  all  cases  where  the  counties  are  liable  to  pay  costs,  those  County  where- 
counties,  wherein  the  offences  shall  have  been  charged  to  be  com-^^^^j^"^  °^'=1'^^ 
mitted,  shall   pay  them.      And   all  fines,    forfeitures   and  amerce- to  pay  costs — 

Such  county  to 

receive  the 

10.  1808,  c.  756.— 1809,  c.  769.— 1813,  c.  864.— 1S30,  c.  l,s.  ll,12and  13.  ^^g  ^ 

11.  1786,  c.  253.  s.  12.  ' 

12.  1820,  c.  1043.-1830,  c.  1,  s.  7. 

13.  1819,0.    lOOS.— 1824,  c.  1253.— 1804,  c.   065,  s.   I,  2  and  .'>. 

14.  1810,0.  799,  s.  1. 


126  COUNTY  REVENUE,  ETC.    [ChAP.  XXVIII. 

ments  shall  be  accounted  for  and  paid  to  the  trustee  of  the  county, 
wherein  the  offence  may  have  been  charged  to   be  committed, 
whereon  such  fine,  forfeiture,  or  amercement  shall  have  arisen. 
County  to  pay        J5    Whenever  an   inquest  shall  be  held,  the  county  trustee, 

the  costs  of  m-     ,         .       ,  1    ^  in  -',  j     u 

quests.  wherem  the  same  may  happen,  shall  pay  on  the  costs  and  charges 

of  the  same  out  of  the  county  moneys. 
County  courts        IQ.   The  county  courts  of  the  respective  counties  shall  make 
lowM^es  to^ "   such   allowances  to  their  sheriffs,    clerks  or  county  attorneys  for 
certain  officers  extra  services,  as  they  may  think  proper  and  just,  which  allow- 
vices.  ances  shall  be  paid  by  the  county  trustee  out  of  the  county  funds  : 

Provided  J  that  in  the  making  of  such  allowances,  or  in  any  allow- 
ance of  any  other  claim  against  the  county,    a  majority  of  the 
acting  justices  belonging  to  such  county  shall  be  present. 
Clerk  shall  17.   Jt   shall  be  the  duty  of  the  clerks  of  the  county  courts 

miTTi hpv  nil 

claims,  &c.       within  the  respective   counties,  if  the  same  shall  be  thought  ad- 
agauist  the       visable   or  necessary  and   be  so   ordered  by  the  county  court,  to 
book,  and  fur-  number  all  claims,  orders  and   certificates  that  may  be  allowed  by 
""^^  ^f^h*^*^^^'  ^^^®  court  in  which  they  may  act,  in  a  book  kept  for  that  purpose, 
court  with  a     and  they  shall  annually,  the  day  before  the  county  court's  proceeding 
copy  annually,  ^q  ]ay  a  county  tax  for  the  ensuing  year,   furnish  the  chairman  of 
the  court  with  a  copy  of  the  same  :  they  likewise  shall  insert  the  dif- 
ferent allowances,  agreeably  to  the  number,  in  the  tax  hst  that  such 
clerks  supply  the  sheriffs  or  collectors  with,  in  order  that  the  same 
may  be  collected  and  paid  according  to  their  number  and  priority. 
Penalty  on  the       ig.   Any  county  court  clerk,  neglecting  or  refusing  to  perform 
to  number  ^  ^^  ^^Y  P^^t  of  the  duty  enjoined  by  the  last  section,  shall  forfeit  and 
claims,  &,c.       pay  the  sum  of  twenty  dollars  for  every  such  offence,  recoverable 
before  any  jurisdiction  having  cognizance  thereof,  onehalf  to  the 
use  of  any  person  who  may  commence  suit  for  the  same,  the  other 
half  to  be  applied  toward   defraying  the  county  tax.     And  when 
His  compen-    any  county  court  shall  so  direct  their  clerk  to  record  and  number 
forming'th^r    ^^^  county  claims  as  aforesaid,  such  county  court  shall  and  may 
service.  allow  the  clerk,  for  all  such  services,  annually,  any  sum  not  ex- 

ceeding four  dollars. 
A  statement  of  19.  The  court  of  each  county  shall,  at  the  first  session  after  the 
ceiveFandex-  ^^^^  ^^7  of  June  in  every  year,  cause  the  proper  officer  to  publish 
pended  for  and  set  up,  in  some  part  of  the  court  house,  an  account  of  the 
poses'^to'be  set  moneys  received  the  preceding  year,  by  taxes  or  otherwise,  stating 
up  in  the  court  also  what  application  hath  been  made  of  the  same,  to  whom  paid, 
°"^^'  and  what  claims,  if  any,  against  the  county  remain  undischarged. 

County  court         20.   It  shall  be  the  duty  of  the  county  courts,  a  maiority  of  the 

may  lay  taxes    ....  ■'  ,  •'  n  i  •    1      1 

for  the  pay-     justices  bemg  present,  at  the  same  term  annually  at  which  they  ap- 

mentof  the      point  patrol  committees  for  their  respective  counties,  as   by  law 

directed,  to  lay  a  tax  of  not  more  than  ten   cents  on  each  taxable 

slave  in  said  county,  which  tax  shall  be  levied  and  collected  by 

the  sheriffs  of  the  several  counties  in  the  same  manner  as  other 

15.  1803,  c.  644. 

16.  1790,  c.  331,  s.  1.— 1830,  c.  1,  s.  17. 

17.  1793,  c.  387,  s.  1. 

18.  1793,  c.  387,  s.  3  and  4. 

19.  1786,  c.  255,  s.  4.  ' 

20.  1830,  c.  16,  s.  2  —1790,  c,  331.  s.  1.— 1335,  c.  22,  s.  1. 


Chap.  XXVIIL]  county  revenue,  etc.  127 

taxes,  and  be  applied,  under  the  direction  of  the  county  courts,  to 
defray  the  expenses  of  the  patrol  ;  Provided^  that  in  the  county  of 
Camden,  a  tax,  of  not  more  than  twentyfive  cents  on  each  taxable 
slave  in  said  county,  may  be  levied  and  collected  in  the  manner 
and  for  the  purposes  aforesaid. 

21.  The  several  county  courts  shall  have  full  power  and  author-  County  court 
ity  to  lay  a  tax,  for  the  purpose  of  paying  their  jurors  a  sum  ade-  j^^^J^^  ^^^^^ 
quate  to  their  services,  which  shall  not  exceed  one  dollar  and  fifty  ment  of  jurors, 
cents,  nor  be  less  than  fifty  cents  per  day,  and  a  sum  equal  to  the 

daily  allowance  for  every  thirty  miles  travelling  to  and  from  said 
court.  Provided^  nevertheless,  that  a  majority  of  the  justices  of 
said  county  be  present  when  the  said  tax  shall  be  laid,  and  that 
said  tax  may  be  laid  on  all  the  real  estate  and  taxable  polls  in  the 
county,  and  collected  and  accounted  for  as  other  county  taxes  are 
now,  or  may  hereafter  be  accounted  for. 

22.  The  county  courts  in   this   State  are  respectively  invested  Power  of  the 
with  full  power  to  direct  the  application  of  all  moneys  arising  by  disposing'of  '" 
virtue  of  this  act,  to  and  for  the   purposes  herein  mentioned,  and  the  county 

to  any  other  good  and  necessary  purpose  for  the  use  of  the 
county. 

23.  It  shall  and  may  be  lawful  for  the  court  of  pleas  and  quarter  County  court 
sessions  in  each  and  every  county,  at  any  court  which  shall  happen  three  persons 
after  the  first  day  of  August  in  each  and  every  year,  a  maiorily  of^o^^^tas  a 
the  justices  of  the  peace  of  said  county  being  present,  if  such  court  finance, 
shall  deem  it  expedient,  to  appoint  three  persons  of  skill  and  pro- 
bity to  act  as  a  committee  of  finance,  whose  duty  it  shall  be  to  ex- 
amine all  the  records,  papers  and   documents  which  have  relation 

to  any  county  moneys  in  the  offices  of  the  clerks  of  the  county 
and  superior  courts,  and  of  the  clerks  and  masters  in  equity,  and 
to  audit  and  settle  all  accounts  between  said  counties,  and  the 
sheriffs,  county  trustees,  or  any  other  officers  or  commissioners,  er"  of'^suclT"^" 
who  may  hold  any  moneys  belonging  to  said  counties  ;  and  the  committee, 
said  committee  are  hereby  authorized  and  empowered  to  call  on 
each  of  said  clerks,  at  their  offices,  to  lay  before  them  for  inspec- 
tion such  records,  documents  and  papers  as  aforesaid,  and  call  on 
such  sheriffs,  county  trustees,  and  other  officers  or  commission- 
ers of  their  respective  counties,  to  meet  them  at  the  court  house  of 
such  counties,  to  audit  and  settle  their  respective  accounts,  at  such 
time  as  said  committee  may  designate. 

24.  It  shall  be  the  duty  of  said  committee  to  make  a  full  investiga-  Committee  to 
tionof  allthe  financial  concerns  of  their  respective  counties,  and  make  {jCTation"  of  all 
a  fair  and  true  return  to  the  said  courts  at  the  end  of  each  financial  the  financial 
year,  setting  forth  a  full  statement  of  their  investigation,  designa-  county"and 
ting  therein  all  moneys  due  from  their  respective   counties  to  indi-  make  return  to 
viduals,  as  w"ell  as  those  sums  due  by  individuals  to  the  counties  ;  end  of  each  fi- 
and  each  member  of  said  committee  shall  receive  an  allowance  not  nandal  year, 
exceeding  two  dollars  per  day  for  each  day  he  shall  be  necessarily  ^p^i^ittee^ 

21.  181.5,  c.  891,  s.  1. 

22.  1777,  c.  129,  s.  4. 

23.  1831,  c.  31,  s.  1. 

24.  1831,  c.  31,  s.  2. 


128  COUNTY  REVENUE,  ETC.    [ChAP.  XXVIII. 

employed  on  said  committee,  to  be  paid  by  the  county  trustee  out 
of  any  funds  of  the  county ;  and  all  such  allowances  shall  be  made 
upon  proof,  to  the  satisfaction  of  said  courts,  by  the  members  of 
said  committee,  of  the  number  of  days  they  were  employed  in  the 
duties  prescribed  in  this  act. 
Any  officer  ^^-  If  said  clerks,  sherifis,  county  trustees,  or  other  officers  or 

failing  to  set-    commissioners,  who  may  hold  any  county  money,  shall  fail,  neg- 
ing^erdayT^^sct  or  refusc  duly  to  account  for  the   same,   the  committee   of 
notice,  to  lor-    finance  shall  give  such  person  ten  days  previous  notice,  in  writing, 
dred°dolla"rs'    0^  the  time  and  place  at  which  they  will  attend  to  make  said  settle- 
ment, and  every  officer  receiving  such  notice,   as  aforesaid,  and 
failing  to  make  settlement,  as  required  by  this  act,  shall  forfeit  and 
pay  the  sum  of  one  hundred  dollars,  to  be  recovered  by  action  of 
debt  before  said  court ;  which  suit  shall  be  brought  in  the  name  of 
the  State,  and  shall  be  prosecuted  at  the  expense  of  the  county, 
unless  said  county  court  shall  release   said   officers  from  said  for- 
feiture, which  they  are  hereby  authorized  to  do. 
Oath  to  beta-       26.   Every  person  appointed  by  virtue  of  this  act  a  member  of 
ken  by  the       the  Committee  of  finance,  shall,  previous  to  his  entering  upon  the 
conunitTee.     ^duties  thereof,  take  the  following  oath,  which  shall  be  administered 
by  the  courts  aforesaid,  to  wit  :  I  A.  B.   do  solemnly  swear    or 
affirm  as  the  case  may  be,  that  I  will  faithfully  perform  the  duties 
imposed  on  me  by  law  as  a  member  of  the  committee  of  finance 
for  the  county  of  in  all  business  that  shall  come  before  me, 

without  doing  injustice  to  the  county  or  to  individuals,  to  the  best 
of  my  knowledge  and  ability,  so  help  me  God. 
Penalty  for  re-       27.   If  any  person,  who  shall  be   appointed  a  member    of  the 
^^^th^  ^°  ^^'"y.®  committee  of  finance  as  aforesaid,  shall  refuse  or  neglect  to  ^erve 
tee.  or  do  his  duty  as  a  member  thereof,  he  shall  be  liable  to  pay  a  pen- 

alty of  fifty  dollars  for  his  refusal  or  neglect  aforesaid,  to  be  re- 
covered before  any  jurisdiction  having  cognizance  thereof,  to  be 
sued  for  in  the  name  of  the  State  ;  Provided,  that  no  person  shall 
be  compelled  to  serve  as  a  member  of  said  committee  for  a  longer 
time  than  three  years. 
Officers  having  28.  It  shall  be  the  duty  of  the  several  clerks,  sheriffs,  county 
claims  against  trustees,    and  other    officers    or   commissioners,   who    may   have 

the  county  how    ,   .  '      ,  ,  ,     .  .  .  ,    ,.  / 

to  proceed.  clamis  or  demands  on  their  respective  counties,  to  deliver  the  same 
to  the  committee  of  finance  for  their  examination  and  inspection, 
whose  duty  it  shall  be  to  make  out  two  fair  and  correct  statements 
of  each  settlement  by  them  made  by  virtue  of  their  appointment, 
one  of  which,  after  having  been  submitted  and  passed  upon  by  the 
court,  shall  be  filed  with  the  clerk  of  the  county  court,  and  the 
other  kept  by  the  committee  for  their  own  use. 
Clerk  to  fur-  29.  It  shall  be  the  duty  of  the  clerks  of  the  county  courts,  to 
nish  the  com-    fijmish  said  committees  with  a  statement  of  all   sums    allowed  by 

mittee  with  a,  .,..,,  •         r      i      ^  i 

statement  of     the  county  courts  to  individuals,  setting  lorth  the  several  amounts 
the  sums  al-     g^,^  ^q  whom  made. 

lowed  by  the 
county  court. 

25.  1331,  c.  31,  s.  3. 

26.  1831.  c.  31,  s.  4. 

27.  1831,  c.  31,  s.  5.    ■ 

28.  1831,  c.  31,  s.  6. 

29.  1631,0.  31,  s.  7. 


Chap.  XXIX.]         county  trustees. 


129 


30.  It  shall  be  the  duty  of  the  committee  of  finance,  appointed 
under  this  act,  and  they  are  here  by  empowered  to  institute  suits  for 
the  recovery  of  all  moneys,  found  to  be  due  to  their  respective 
counties,  from  any  person  liable  to  account  as  aforesaid,  before 
any  jurisdiction  having  cognizance  thereof  ;  which  said  suit  or  suits 
shall  be  brought  in  the  name  of  the  State,  for  the  use  of  the  county  ; 
and  in  case  the  plaintiff  shall  succeed,  the  defendant  shall  pay  the 
costs,  but  if  the  defendant  shall  succeed,  the  county  shall  pay  the 
costs. 

31.  In  case  any  vacancy  in  any  committee,  appointed  by  said 
justices  as  aforesaid,  shall  be  occasioned  by  the  death,  removal,  or 
refusal  to  act,  incapacity,  or  inability  of  any  one  or  two  members 
appointed  to  serve  on  said  committee,  then  it  shall  be  the  duty  of 
the  next  court  of  pleas  and  quarter  sessions  for  said  county,  that 
shall  be  holden  after  such  vacancy  happens  as  aforesaid,  and  the 
said  court,  seven  justices  being  present,  is  hereby  authorized  to 
appoint  some  person  or  persons  to  fill  such  vacancy  ;  which  per- 
son or  persons  so  appointed  shall  have  the  same  powers,  and  be 
subject  to  the  same  penalties,  in  case  of  refusal  or  neglect  to  serve 
and  do  their  duty,  as  those  appointed  by  said  justices  as  aforesaid. 

30.  1831,   c.  31,  s.  8. 

31.  1831,  c.  31,  S.  9. 


Committee 
may  institute 
suit  for  the  re- 
covery of 
money  belong- 
ing to  the 
county. 


County  court 
to  fill  vacancies 
in  the  commit- 
tee. 


Note.  —  References  to  Adjudged  Cases, 


Sec.  1.  Lockhart  »s.  Harrington,  1  Hawks,  408. 
Sec.  3.  Cameron  vs.  Campbell,  3  Hawks,  285. 


CHAPTER  29. 


/^4^-?• 


L 


COUNTY    TRUSTEES. 


AN  ACT  PROVIDING  FOR  THE  APPOINTMENT  AND  DIRECTING  THE 
DUTIES  OF  COUNTY  TRUSTEES. 


Section 

1.  County  trustee  how  to  be  appointed. 
2    How  vacancies  to  be  filled. 

3.  County  trustee  to   give  bonds   and 

take  oaths. 

4.  To  collect  all  moneys  due  his  county. 

5.  To  call  on  the  sheriflT  and  clerk   for 

the  payment  of  all  moneys  in  their 
hands  due  their  counties. 

6.  Clerk  and  master  to  settle   with  the 

county  trustee  for  tax  fees  on  suits. 

7.  County  trustee  to  settle  with  sherifis 

for  claims  according  to  number. 

VOL.    I.  17 


Section 

8.  Compensation  allowed  county  trustee. 

9.  County  trustee  to  settle  with  courts 

annually. 

10.  Penalty  on  county  trustee  for  neglect 

of  duty. 

11.  The  county  court,  a  majority  of  the 

justices  being  present,  may  abolish 
the  office  of  county  trustee  and  de- 
volve the  duties  of  such  office  on 
the  sheriflT. 


130  COUNTY    TRUSTEES.  [ChAP.  XXIX. 

1 .   Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^Torth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
County  trus-    That  the  justices  of  the  several  county  courts  of  this  State,  a  ma- 
tees  how  to  be  jority  of  the  acting  justices  being  present,  shall,  during  the  sitting 
appointe  .        ^^  ^.j^^j^    respective  courts   to  be  held  next  after  the  first  day  of 
January  yearly  and  every  year,  appoint  one  good  and  proper  per- 
son to  act  as  a  trustee  for  one  year  for  the   purposes   herein  men- 
tioned, which  appointment  shall  be  entered  on  the  records  of  the 
said  court  :  Provided,  that  no   person  shall  be   considered    duly 
elected  without  receiving  a  majority  of  the  votes  of  the  justices 
present. 
How  vacancies      2.   In  case  of  the  death,  disqualification,  neglect  or  refusal  to  act 
to  be  filled.      of  any  of  the  trustees  appointed  as  above,  the  court  of  the  county, 
where  such  death,  disqualification,  neglect  or  refusal  shall  happen, 
may  proceed  to  appoint  one  other  good  and  proper  person  to    fill 
up  such  vacancy  until  the  next  annual  appointment,  under  the  rules 
and  regulations  before  prescribed,  and  such  trustee,  during  his  con- 
tinuance in  that  appointment,  shall  have  the  same  powers  and    au- 
thorities which  by  this  act  are  given  to  other  county  trustees. 
County  trus-         ^*   ^^^^  person  appointed  as    trustee  for  the    county  shall   give 
tees  to  give      bond  in  such  sum,  as   the  court  may  think  sufficient  to   cover  all 
take  oaAs        moneys  which  may  be  paid  to  the  said  trustee   for  the  use  of  the 
county,  with  sufficient  security,  for  the  faithful  discharge  of  his 
duty,  payable  to  the  State  of  North  Carolina,  to  be  sued  upon  and 
recoveries  to  be  had  thereupon  in  the  same  manner  and  under  the 
same  rules,  regulations  and  restrictions  as  are  prescribed  for  suits 
and  recoveries  upon  the  official  bonds  of  sheriffs  and  other  officers  ; 
and  such  trustees  shall  take  the  oaths  prescribed  for  pubhc  officers, 
and  also  an  oath  of  office. 
To  collect  all        4.   It  shall  be  the  duty   of  the  county  trustee,  after  qualifying 
moneys  due  his  himself  as  aforesaid,  and  he  shall  have  full  power  aud  authority  to 
county.  demand,  sue  for,  recover  and   receive,   from  the  sheriff  of  the 

county  and  from  all  other  persons,  all  moneys    which  may  be  in 
their  hands  due  and  payable  to  and  for  the  use    of  such  county, 
which  moneys  the  trustees  respectively  shall  apply  as  the   county 
court  may  direct,  and  to  no  other  use  or  purpose  whatsoever. 
_,      ,,       -         5.  The  county  trustees  shall  annually   call  on  the   sheriffs  and 

To  call  on  the       i      i  r     i     •  •  •         r         i  n      n 

sheriffs  and  clcrks  ol  their  respective  counties  tor  the  payment  ol  all  moneys, 
clerks  for  the  t^gt  jjjay  be  in  their  hands  due  to  the  trustees  ;  and  if  any  sheriff 
moneys  in  their  or  clcrk  shall  fail  to  account  for  and  pay  the  same,  then  it  shall  be 
hands  due  their  t]^e  duty  of  the  said  trustees,  at  the  first  court  held  for  their  coun- 

COUTltlPS 

ties  after  the  first  day  of  May  in  each  and  every  year,  to  move  for 
judgment  against  such  sheriff  or  clerk,  failing  to  settle  as  above 
specified,  ten  days  notice  being  previously  given,  and  the  court 
shall  thereupon  award  immediate  execution  against  such  sheriff  or 
clerk  and  his  sureties  for  the  full  amount  of  the  taxes  or  public 
money  due  from  the  said  sheriff  or  clerk  ;  and  every  sheriff  or  clerk, 

1.  1777,  c.  129,  s.  3.— 1816,  c.  901,  s.  1. 

2.  1777,  c.  129,  s.  4. 

3.  1777,  e.  129,  s.  3.— 1833,c.  17.— 1811,  c.  821,  s.  1.— 1791,  c.  342,8.  1  and  2. 

4.  1777,  c-  129,  s.  3. 

5.  1808,  c.  754,  s.  1.— 1809,  c.  769,  s.  5. 


Chap.  XXIX.]        county  trustees.  131 

against  whom  judgment  is  so  obtained,  shall  over  and  above  arreara- 
ges forfeit  and  pay  the  sum  of  one  hundred  dollars,  to  be  apphed 
to  the  use  of  the  county  ;  and  if  any  trustee  shall  fail  to  comply 
with  the  requisites  of  this  act,  he  shall  not  only  be  hable  for  the 
moneys  he  may  then  or  thereafter  have  in  possession,  but  shall  be 
subject  to  the  penalty  of  one  hundred  dollars,  to  be  recovered  by 
suit  in  any  court  of  record,  onehalf  to  the  informer  and  the  other 
half  to  the  use  of  the  county. 

6.  If  any  clerk  and  master  in  equity  within  this   State  shall  fail  Clerk  and  mas- 
or  neglect  to  pay  over  to  the  county  trustee  the  tax  fees  on  suits  in  ^"th'the  county 
equity,  in  like  manner  as  tax  fees  on  suits  at  law,  such   clerk  and  trustee  for  tax 
master  in  equity,  so  failing  or  neglecting,  shall  forfeit  and  pay  the  ^^^^  ""^  ^^^^^* 
same  sums,  as  the  clerks  of  the  superior  courts  of  law  upon  failure 

of  the  like  nature,  to  be  sued  for  and  recovered  in  the  same  man- 
ner. 

7.  The  county  trustee  shall  settle  with  the   sheriff  or  collector  County  trus- 
of  public  taxes,  only  according  to  the  number  of  claims  beginning  ^?jj^°J^^^% 
at  the  lowest  number,  and  where  there  is  no  trustee  in  the  county,  for  claims  ac- 
the  county  court  may  and  shall  proceed  to  settle  with  their  sheriff^"^™^^  ^° 
or  collector  of  public  taxes  in  the  hke  manner. 

8.  The  county  courts  of  pleas  and  quarter  sessions  shall  allow  compensation 
to  the  trustees  of  their  respective  counties  a  reasonable  salary,  as  allowed  coun- 

c         l^  I  ■  1  -r  ty  trustees. 

a  compensation  lor  all  such  services  as  have  not  a  specitic  com- 
pensation annexed  to  them. 

9.  At  the  first  court  in  each  respective  county,  which  shall  be  County  trus- 
held  after  the  first  of  June   in  each  and  every  year,   the   county  ^?j^°^^y"j°^^ 
trustees  of  the  respective  counties  shall  make  settlement  with  the  nually. 
courts,  in  which  they  shall  render  an  account  of  the  whole  of  their 

receipt  and  expenditures,  under  the  penalty  of  four  hundred  dol- 
lars to  be  recovered  by  action  of  debt. 

10.  In  case  any  trustee  of  any  county  in  this  State  shall  neglect  Penalty  on 

or  refuse  to  do  and  perform  the  several  and  respective  duties  here- ^.°™^y /™®*^^^ 
in  enjoined  or  any  of  them,  the  person   so   offending,   refusing  or  duty, 
neglecting  shall  forfeit  and  pay  for  every  neglect  or  refusal,  where 
another  penalty  is  not  annexed,  the  sum  of  ten  dollars,  to   be  re- 
covered by  action  of  debt,  in  the  name  of  the  State,  to  and  for  the 
use  of  the  county  where  the  offence  was  committed. 

11.  Whenever  a  majority  of  the  acting  justices  of  the  peace  of  The  county 
any  county  shall  deem  it  advisable,  they  may  abolish  the  office  of  9°"''^'  a  major- 

•  ii  •  1  f*  "}         1  '  1  1  y        inc  jU.su** 

county  trustee  ;  provided  notice  thereot  has  been  given  by  adver- ces  being  pre- 
tisement  in  pursuance  of  the  order  of  the  countv  court  at  the  pre- ?^"'^','"^y '^^°^" 

.  J  L  ish  trie  oiiice  ot 

ceding  term  ;  it  shall  then  be  the  duty  of  the  sheriff  of  such  coun-  county  trustee, 
ty  to  collect  all  such  sums  of  monev  as  the  county  trustee  may  and  ^"'^. '''^™^^® '^i'® 

*/  •'♦'•'  duties  or  sucii 

ought  to  do,  and  he  shall  and  may   use  the   same  remedies  there-  office  on  the 
for  as  county  trustees  ;  it  shall  further  be   the  duty  of  said  sheriff  ^^^"^• 
to  act  as  county  trustee  in  the  payment  of  claims,  allowed  by  the 

6.  1813,0.  864. 

7.  1793,  c.  337,  s.  2. 

8.  1777,  c.  129,  s.  4. 

9.  1792,  c.  361,  s.  1. 

10.  1777,  c.  129,  s.  5. 

11.  Amendment. 


132 


COURT    HOUSES,  ETC.  [ChAP.  XXX. 


county  court,  to  be  governed  by  the  same  rules  and  regulations  as 
county  trustees  ;  and  it  shall  be  the  further  duty  of  such  sheriff,  so 
acting  as  county  trustee,  to  settle  with  the  county  court  in  the 
same  manner  and  under  the  same  penalties  as  county  trustees  are 
now  required  to  settle  ;  and  whenever  any  county  court  shall  abol- 
ish the  office  of  county  trustee  and  impose  the  duties  thereof  on 
the  sheriff,  it  shall  be  the  duty  of  such  court  to  compensate  the 
sheriff  of  said  county  for  such  additional  duties. 


CHAPTER  30. 

COURT  HOUSES,  PRISONS  AND 

STOCKS. 


AN  ACT  CONCERNING  COURT  HOUSES,  PRISONS,  AND  STOCKS,  AND 
PRESCRIBING  THE  APPOINTMENT  AND  DUTIES  OF  THE  TREAS- 
URER OF  PUBLIC  BUILDINGS. 


Section 

1 .  County  courts  to  keep  court  houses, 

jails  and  stocks  in  repair ;  and  may 
lay  a  tax  for  that  purpose. 

2.  Jails  to   have   four   separate  apart- 

ments. 

3.  Grand  jury  at  each  court   shall  visit 

the  jail. 

4.  County  court  to   appoint  a  treasurer 

of  public  buildings — His  duty. 


Section 

5.  County  court  to  fill  vacancies  in  such 

office. 

6.  Treasurer  of  public  buildings  to  set- 

tle his  accounts  annually — Penalty 
for  failing  to  settle,  and  how  to  be 
proceeded  against. 

7.  What  to  be  done  when  the  treasurer 

of  public  buildings  recommends  al- 
terations, repairs,  &c. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of 
Jforth  Carolina^  and  it  is  hereby  enacted  by  the  authority  of 
County  courts  t^^^  same,  That  there  shall  be  kept  and  maintained  in  good  and 
to  keep  court  sufScient  repair,  in  each  and  every  county  in  this  State,  a  court 
and^stocksin  house,  common  jail  and  stocks,  the  whole  expense  of  building 
repair;  and  whereof,  when  there  shall  be  occasion,  as  well  as  repairing  such 
for^hat^pur-^^  &s  are  already  built,  shall  be  defrayed  by  the  county,  wherein  the 
pose.  same  are  situated,  and  the  courts  of  the  several  counties   respect- 

ively are  hereby  invested  with  full  power  and  authority  to  lay  and 
collect  taxes,  from  year  to  year  as  long  as  may  be  necessary,  for 
the  purpose  of  building,  repairing  and  furnishing  their  several 
court  houses,  jails  and  stocks,  in  such  manner  as  they  shall  think 
proper,  and  from  time  to  time  to  order  and  estabhsh  such  rules 
and  regulations  for  the  preservation  of  the  court  houses,  and  for 
the  government  and  management  of  the  prisons,  as  may  be  condu- 
cive to  the  interests  of  the  public  and  the  security  and  comfort  of 
the  persons  confined. 


1.  1741,  c.  33,  s.  1  and  2 — 1795,  c.  433,  s.  1.— 1816,  c.  911,  s.  1. 


Chap.  XXX.]        court  houses,  etc.  133 

2.  The  common  jails  of  the  several  counties  shall  be  provided  Jails  to  have 
with  at  least  four  separate  comfortable  apartments,  one  for  the  [panments!^ 
confinement  of  white  male   criminals,   one  for  the   confinement  of 

white  female  criminals,  one  for  the  confinement  of  debtors,  and 
one  other  for  the  confinement  of  negroes. 

3.  It  shall  be  the  duty  of  the  grand  jury  in  each  county,  at  Grand  jury  at 
every  court  holden  for  said  county,  to  visit  the  jail  of  said  county,  ^^g-^  1^^411.^ 
and  examine  the  apartments  in  which  prisoners  shall  be  confined, 

and  they  shall  report  to  the  court  the  condition  of  said  jail  and  of 
the  prisoners  confined  therein,  and  also  shall  report  to  the  court 
the  manner  in  which  it  shall  appear  to  them  the  jailer  has  discharged 
the  duties  imposed  by  law. 

4.  The  several  county  courts,  a  majority  of  the  acting  justices  9°™'^^.'^°"^^^ 
of  the  county  being  present,  shall  annually  at  the  first  court  which  treasurer  of 
shall  be  held  after  the  first  day  of  January  in  each  and  every  year,  public  ^>'^^^_ 
appoint  a  suitable  person  residing  within  the  county  to  act  as  treas-  ty? 

urer  of  pubhc  buildings,  whose  duty  it  shall  be  after  having  given 
bond  and  satisfactory  security  payable  to  the  State  of  North  Caro- 
hna,  in  such  sura  as  may  be  required,  for  the  faithful  discharge  of 
the  trust  reposed  in  him,  to  superintend  the  public  buildings,  and 
from  time  to  time  report  the  state  and  condition  thereof;  to 
recommend  alterations,  repairs  or  improvements,  together  with  the 
sums  requisite  for  carrying  such  alterations,  repairs  or  improve- 
ments into  effect ;  to  call  to  account  by  suit  if  necessary,  and  set- 
tle with  all  former  commissioners,  who  may  have  received  county 
moneys  for  such  purposes  ;  to  hear  the  complaints  of  persons  con- 
fined respecting  their  diet  and  treatment ;  to  examine  into  the  con- 
duct and  character  of  the  jailer,  and  make  information  thereof  to  the 
court  or  grand  jury  of  the  county  as  circumstances  may  require  ; 
to  apply  for  and  obtain  from  the  clerk  all  papers  and  documents, 
properly  attested,  which  may  be  necessary  for  the  collection  of  the 
taxes  laid  by  the  court  ;  to  see  that  the  same  be  collected,  ac- 
counted for,  and  applied  according  to  the  intentions  of  and  mean- 
ing of  this  act ;  and  the  treasurer,  so  appointed  and  qualified,  shall 
hold  his  office  during  one  year,  and,  as  a  compensation  for  all  his 
services,  shall  be  entitled  to  retain  a  sum  not  exceeding  five  per 
cent,  of  the  moneys  which  may  pass  through  his  hands. 

5.  Whenever  the  office  of  treasurer  of  public   buildings   shall  County  court 
become  vacant  by  the  death,  removal,   resignation  or  disqualifica-  in  such^office'f^ 
tion  of  any  such  officer,   the  several  county  courts  are  hereby   di- 
rected to  make  an   appointment  to  fill  such  vacancy,   until  the  an- 
nual term  of  appointment  :  Provided^   That  no  election  authorized 

by  this  section  shall  take  place,  unless  a  majority  of  the  acting 
justices  of  such  county  be  present  at  said  election. 

6.  The  treasurers  of  public  buildings  in  the  several  counties  shall  Treasurer  of 
and  they  are  hereby  expressly  required,  at  the  term  appointed  for  fn'gsTo  settle 
their  election,  and  previous  to  the  election   takina;  place,  to  settle  his  accounts 

'     ^  b  r    '         annually. 

2.  1795,  c.  433,  s.  4.— 1816,  c.  911,  s.  1. 

3.  1816,  c.  911,  s.  3. 

4.  1797,  c.  483,  s  1  and  3.— 1793,  c.  433,  s.  2  and  3. 

5.  1798,  c.  517,  S.  2. 

6.  1797,  c.  488,  s.  2.— 1795,  c.  433,  s.  3. 


134  COURT    HOUSES,    ETC.  [ChAP.  XXX. 

their  accounts  with  the  courts  by  exhibiting  a  fair  account  of  their 
receipts  and  expenditures,  setting  forth  the  moneys  received  and 
at  what  time,  the  sums  expended,  to  whom  paid,  for  what  use  and 
at  what  time,  a  complete  transcript  of  which  account  shall  be 
posted  up  in  the  court  house  for  public  inspection  ;  and  if  any 
treasurer  shall  fail,  refuse  or  neglect  to  exhibit  the  same,  he  shall 
be  hable  to  be  sued  upon  his  bond,  and  also  to  such  fine  in  addi- 
tion thereto  as  the  court  may  think  proper  to  impose,  not  exceed- 
Penalty  for  ing  One  hundred  dollars  ;  and  if  any  treasurer  of  public  buildings 
failing  to  set-    gj^igj^  |-^jj  qj.  j-gfuse  to  Settle  with  the  court  of  his  county  as  above 

tie,  and  how  to  ■        ry  •    •         i-  i 

be  proceeded     directed,  his  successor  m  oince,  on  givmg  mm  ten  days  previous 
against.  notice,  shall  have  full  power  and  authority  and  is  hereby  expressly 

required  to  enter  up  judgment  in  the  court  of  his  county,  and  award 
execution  against  the  body,  goods  and  chattels,  lands  and  tene- 
ments of  such  treasurer,  for  all  such  sums  as  can  be  made  appear 
to  the  court  he  has  received  for  the  purposes  pointed  out  in  the 
preceding  sections  of  this  act,  with  interest  from  the  day  of  receiv- 
ing such  sum  or  sums  ;  or  if,  in  settling  their  accounts  any  of  the 
treasurers  of  the  pubhc  buildings  shall  fail  or  neglect  to  pay  the 
balance  which  shall  appear  to  be  due  from  him,  his  successor  shall 
have  the  same  power,  on  giving  similar  notice,  to  enter  up  judgment 
and  award  execution  against  him  for  such  balance. 
What  to  be  7.   When  the   treasurer  of  the   public  buildings  of  any  county 

done  when  the  g^all    in  his  report  to  the  court  of  such  county,  recommend  alter- 

treasurer  ot,  ,•*■,  * 

public  build-     ations,  repairs  or  improvements  to  the  court  house  or  jail,  and  the 
mgs  recom-      court  shall  be  satisfied  of  the   utility  thereof,   it  shall  be  lawful  for 

mends  alter-  ^        ,       .  .        ,    •'       .  ,      , 

ations,  repairs,  such  court,  alter  havmg  previously  estimated   the  expense,  to  ap- 
&c.  point  one  or  more  commissioners,  in  conjunction  with  their  treas- 

urer, to  contract  for  carrying  the  same  into  effect,  but,  such  con- 
tract being  concluded,  the  powers  of  the  commissioners  shall  cease  ; 
and  the  moneys  payable  thereon  shall  be  advanced  from  time  to 
time  by  the  treasurer,  who  is  hereby  declared  to  be  solely  respon- 
sible and  accountable  to  the  court,  as  well  for  the  sufficiency  of 
the  work  as  the  disbursements  of  the  money. 

7.   1795,  c.  433,  s.  3. 


Note. — Refehemces  to  Adjudged  Cases. 
Sect.  1.  State  vs.  Justices  of  Lenoir,  4  Hawks,  194. 


CuAr.  XXXI.]  COURTS,  county  and  superior. 


135 


CHAPTER  31. 


COURTS,  COUNTY  AND  SUPERIOR. 


AN  ACT  CONCERNING  COURTS  OF  JUSTICE,  PRACTICE,  PLEAS  AND 

PROCESS. 


Section 

1 .  Justices  of  the  peace  to  be  judges  of 

the  courts  of  pleas  and  quarter  ses- 
sions— At  what  time  tiie  said  courts 
shall  be  held. 

2.  Said  courts  may  sit  six  days,  if  the 

business  require  it. 

3.  One  justice  may  adjourn  the  court 

from  day  to  day  not  exceeding  three 
days  until  a  sufficient  number  ap- 
pear to  do  business. 

4.  Justices  failing  to  hold  court,  not  to 

discontinue  the  court  or  any  process 
therein. 

5.  Three  justices  to  hold  the  terms  of 

said  courts — Their  jurisdiction. 

6.  Court  may  purchase  such  books  as 

may  be  deemed  necessary — Said 
court,  a  majority  of  the  justices  be- 
ing present,  may  appoint  a  special 
court,  &c. 

7.  Penalty  on  the  clerk  for  abusing  the 

books  purchased,  &c. 

8.  Court  may  lay  a  tax  for  purchasing 

said  books. 

9.  A  superior  court  of  law  to  be  holden 

in  each  county. 

10.  The  State  to  be  divided  into  seven 

circuits. 

11.  When  the   superior  courts  shall  be 

holden  in  the  first  circuit. 

12.  When  in  the  second  circuit. 

13.  When  in  the  third  circuit. 

14.  When  in  the  fourth  circuit. 

15.  When  in  the  fifth  circuit. 

16.  Anson  court   may    be    holden    two 

weeks  in  the  fall. 

17.  When  the   superior  courts  shall  be 

holden  in  the  sixth  circuit. 

18.  When  in  the  seventh  circuit. 

19.  Said  courts  may  be  kept  open  longer 

than  one  week  for  the  purpose  of 
closing  a  trial  in  a  capital  case. 

20.  Said  courts  to  be  holden  by  judges — 

Their  powers  and  jurii<diction. 

21.  Oaths  to  be  taken  by  the  judges. 


Section 


22 


24 
25 


26 


27 


Oaths  to  be  subscribed  by  the  judges 
and  returned  to  the  secretary  of 
state— Penalty  on  a  judge  for  act- 
ing without  taking  the  oaths. 

Judges  to  allot  the  circuits  among 
themselves  and  publish  the  same. 

Judges  may  exchange  circuits. 

If  no  judge  attend  the  first  day  of 
the  term,  the  sheriiF,  may  adjourn 
from  day  to  day  until  the  third 
day. 

County  court  to  form  a  jury  list  from 
the  list  of  taxablcs,  taking  none  but 
persons  well  qualified — Jury  list  to 
continue  and  he  examined  every  two 
years. 

The  number  of  jurors  to  be  drawn 
for  the  superior  courts,  and  how 
they  are  to  be  drawn — The  number 
to  be  drawn  for  the  county  courts, 
and  how  drawn  —  Persons  having 
suits  in.  court  not  to  be  drawn,  nor 
justices  for  the  county  courts. 

On  failure  of  the  county  court  to 
draw  jurors,  the  sheriif  and  clerk 
assisted  by  three  justices  may  draw 
them. 

County  courts  may  dispense  with  a 
jury  at  two  of  their  terms. 

Jurors  how  to  be  summoned — Shall 
attend  tiU  discharged  by  court — 
tales  jurors  may  be  summoned 
when  necessary. 

Penalty  on  jurors  for  not  attending 
when  summoned — Proviso  that  ju- 
rors shall  have  till  the  succeeding 
term  to  make  excuse — Penalty  on 
tales  jurors  for  not  attending. 

32.  Jurors  exempt  from  service  of  civil 

process. 

33.  Ministers  of  the  gospel  and  regular 

physicians  exempt  from  serving  as 
jurors. 

34.  Grand  jury  how  to  be  drawn 


28 


29 


30 


31 


^' 


136 


COURTS,  COUNTY  AND  SUPERIOR.    [ChAP.  XXXI. 


Section 

35.  Quakers  competent  to  serve  as  jurors 

in  criminal  cases. 

36.  How  the  petit  jury  shall  be  sworn  in 

civil  causes — How  in  State  cases 
not  capital — Proviso  that  the  usual 
challenges  shall  not  be  affected. 

37.  Names  of  the  jurors  to  be  called  over 

in  the  hearing  of  the  parties  before 
empanelling  them. 
33.  Constable  to  be  sworn  to  attend  juries. 

39.  Actions  where  to  be  brought — Actions 

otherwise  brought  to  be  abated  on 
plea. 

40.  No  suit  to  be  brought  in  any  court  for 

any  claim  under  sixty  dollars  aris- 
ing on  an  unliquidated  account,  &c. 
— Nor  for  a  sum  under  one  hun- 
dred dollars  due  by  note,  &c. 

41.  If  suit  be  commenced  in  the  county 

court  for  a  sum  under  sixty  dollars 
due  by  account  it  may  be  abated— If 
for  a  sum  under  one  hundred  dol- 
lars due  by  note,  &c.  it  may  be  dis- 
missed. 

42.  If  commenced  in  the  superior  court 

contrary  to  the  fortieth  section,  the 
suit  may  be  dismissed — When  the 
suit  is  commenced  for  more  and  the 
jury  find  less  to  be  due,  the  plaintiff 
to  be  nonsuited  unless  he  files  an 
affidavit  that  more  is  due — Not  to 
extend  to  suits  on  penal  bonds. 

43.  The  day  when  process  issues  to  be 

marked  thereon,  and  the  sheriff  to 
endorse  the  day  when  he  receives  it. 

44.  Clerk  to  take  security  before  issuing 

any  writ  or  other  leading  process — 
Otherwise  the  suit  may  be  dismiss- 
ed—  Proviso  in  favor  of  persons 
suing  in  forma  pauperis. 

45.  Clerks  to  enter  in  a  book  the, names 

of  parties  to  suits  and  their  sure- 
ties. 

46.  Penalty  on  clerks  for  issuing  process 

without  taking  security. 

47.  Poor  persons  may  sue  in  forma  pau- 

peris. 

48.  When  writs  may  issue  to  different 

counties  at  the  same  time,  returna- 
ble to  the  county  or  superior  court. 

49.  The  real  plaintiff  in  action  of  eject- 

ment to  give  a  prosecution  bond. 

50.  Persons  desiring  to  be  made  defend- 

ants in  ejectment  must  give  a  hail 
bond. 

51.  When  a  plaintiff  in  ejectment  makes 

an  aflidavit  that  the  defendant  en- 
tered into  the  land  as  his  tenant, 
&c.,  the   defendant   shall  not  plead 


Section 

until  he  gives  bond  for  the  costs 
and  damages — What  facts  in  such 
case  the  jury  is  to  find — If  they 
find  for  the  plaintiff  they  must  as- 
sess damages  for  the  occupation, 
&c. — Defendant  may  rebut  plain- 
tiff's affidavit  by  his  own,  &c. 

52.  If  plaintiff  in  ejectment  does  not  give 

security  his  suit  to  be  dismissed — 
Defendant  to  give  bail  or  be  in  cus- 
tody before  pleading. 

53.  Writs  and   other  civil  process  when 

iQ  be  returned — How  long  before 
court  to  be  executed. 

54.  When  sheriff  returns  that  he  has  de- 

fendant in  jail,  how  the  plaintiff 
shall  proceed. 

55.  No  female  shall  be  taken  or  impris- 

oned for  debt. 

56.  How  the  plaintiff  may  proceed  when 

the  sheriff  returns  that  the  defend- 
ant is  not  to  be  found— If  goods  be 
taken  on  a  judicial  attachment  and 
be  not  replevied,  they  may  be  sold 
on  final  judgment. 

57.  When  the  sheriff  returns  that  the  de- 

fendant is  not  an  inhabitant  of  his 
but  some  other  county,  an  alias  shall 
issue  to  the  county  where  the  de- 
fendant resides. 

58.  Times  at  which  the  sheriff  shall  not 

execute  civil  process. 

59.  If  there  be  in  any   county  no  proper 

officer  to  execute  process,  or  he  re- 
fuse to  do  so,  any  judge  may  direct 
the  sheriff  of  an  adjoining  county 
to  do  the  same. 

60.  Additional  compensation  to   sheriffs 

for  executing  process  out  of  their 
county. 

61.  Sheriff  failing  to  execute  and  return 

process,  to  forfeit  one  hundred  dol- 
lars and  be  also  liable  to  indictment. 

62.  Rules  of  court. — Declaration  to  be 

filed  within  the  three  first  days  of 
the  term,  or  the  suit  may  be  dis- 
missed— Defendant  to  appear  and 
plead  or  demur  at  the  same  term 
— When  special  pleading  is  requir- 
ed the  time  may  be  enlarged- 
Writ  of  inquiry  as  to  the  value  of 
foreign  currency  to  be  executed  at 
the  same  term  with  the  judgment 
— Plaintiff  to  reply  or  demur  at  the 
same  term — Other  pleas  to  be  filed 
and  issues  made  up  at  the  same 
term — Time  may  be  allowed  to 
argue  demurrer,  bill  of  exceptions, 
&c. — Parties  may  enter  their  own 


Chap.  XXXL]  courts,  county  and  superior. 


137 


Section 

pleas — Clerk  to  enter  proceedings 
of  court  in  a  well  bound  book — 
Jury  causes  to  be  first  tried — Mo- 
tions in  arrest  of  judgment  to  be 
argued  when  —  Argument  causes 
when  to  be  argued — No  plea  in 
abatement  to  be  received,  but  on 
afiidavit  or  proof — When  plea  in  a- 
batement  is  overruled ,  plaintiff  shall 
recover  costs — As  many  pleas  as 
may  be  thought  necessary  may  be 
pleaded — A  plea  since  the  last  con- 
tinuance not  to  be  a  waiver  of  form- 
er pleas — All  issues  to  be  tried  at 
the  succeeding  term  after  being 
made  up — No  cause  to  be  continu- 
ed but  by  consent  of  parties  or  an 
afiidavit — Courts  may  order  a  par- 
ty continuing  a  cause  to  pay  coats 
^Not  more  than  one  attorney  to 
speak  in  any  cause- — Every  attor- 
ney appearing  in  any  cause  to  pro- 
duce and  file  a  power  of  attorney  if 
required — When  it  is  necessary  for 
the  attorney  to  retain  the  power  what 
is  to  be  done- — No  attorney  to  enter 
an  appearance  until  the  power  is 
produced  if  required. 

63.  In   actions   upon   penal   bonds,  &c. 

plaintiff  may  assign  as  many 
breaches  as  he  thinks  fit — If  judg- 
ment be  given  for  the  plaintiff  on 
demurrer,  &c.  he  may  suggest  as 
many  breaches  on  the  roll  as  he 
thinks  fit — Defendant  may  pay 
damages  and  costs  into  court,  and  if 
so,  no  execution  shall  issue — Judg- 
ment shall  continue  and  be  a  secu- 
rity for  further  breaches. 

64.  Rules  for  taking  testimony  and  sum- 

moning witnesses — Subpoena  for 
witnesses  how  to  issue — Subpoena 
returnable  immediately,  when  to  is- 
sue— How  subpcEna  may  be  served. 

65.  Witnesses   to   attend   from  term  to 

term  till  discharged — Penalty  on 
witnesses  for  non-attendance. 

66.  Witnesses  shall  be  entitled  to  pay  if 

they  attend  after  the  suit  is  decided 
in  vacation,  unless  notified — Wit- 
nesses swearing  falsely  to  obtain  a 
ticket,  guilty  of  pcrju^J^ 

67.  How  witnesses  shall  be  exonerated 

from  forfeiture  and  costs  for  non- 
attendance. 

68.  In  what   cases   depositions   of  wit- 

nesses may  be  taken — Clerk  to 
pass  upon  all  depositions. 

VOL.    I.  18 


Section 

69.  Notice  to  be  given   to  the  adverse 

party  of  the  time  and  place  of  tak- 
ing depositions. 

70.  Under   what   circumstances   deposi- 

tions of  witnesses  may  be  taken  be- 
fore the  cause  is  put  to  issue — No- 
tice to  be  given,  &c. 

71 .  Witnesses  refusing  to  give  testimony 

in  court  or  before  commissioners  to 
be  committed. 

72.  Witnesses  during  tlieir  attendance  to 

be  exempt  from  the  service  of  all 
civil  process  except  subpoenas. 

73.  Pay  of  witnesses  for  their  attendance. 

74.  After  the  removal  of  a  cause,  sub- 

poenas and  commisions  to  take  tes- 
timony may  be  issued  from  either 
court. 

75.  Witnesses  to  prove  their  attendance 

on  each  court — How  witness  may 
recover  his  pay  for  attendance. 
76  Witness  tickets  to  be  filed  with  the 
clerk,  to  be  taxed  in  the  bill  of 
costs— Party  cast  to  pay  but  for 
two  witnesses  to  prove  the  same 
fact. 

77.  Costs  of  publication  and  postage  of 

letters  covering  process  to  be  taxed. 

78.  Subpoenas    for  witnesses   to   attend 

commissioners,  &c.  how  to  be  issu- 
ed— Pay  of  witnesses  for  attending 
commissioners,  &c. 

79.  The  party  in  whose  favor  judgment, 

&c.  is  given  to  recover  full  costs. 

80.  Defendant  may  in  certain  cases  plead 

a  set-off,  or  give  it  in  evidence  un- 
der the  general  issue,  upon  notice 
to  the  plaintiff. 

81.  Testimony  of  colored  persons  incom- 

petent against  white  persons — Ad- 
missible against  each  other. 

82.  In  what  cases  in  actions  of  slander 

and  assault  and  battery  the  plaintiff 
shall  not  recover  more  costs  than 
damages. 

83.  In  trespass    quare    clausum   /regit 

the  defendant  may  disclaim  and 
plead  tender — If  the  jury  find  the 
trespass  involuntary  and  the  tender 
in  favor  of  the  defendant,  the  plain- 
tiff shall  be  barred. 

84.  In  actions  of  trespass,  &c.  if  there  be 

more  than  one  defendant  and  one  or 
more  be  acquitted,  the  persons  so 
acquitted  shall  recover  full  costs, 
unless  the  judge  certifies,  &c. 

85.  In    what    cases     a  subpcena   duces 

tecum  may  issue. 


C    <hi.t  7^6  f"-      C^    /  V 


138 


COURtS,    COUNTY    AND  SUPERIOR.  [ChAP.  XXXI. 


Section 

86.  Court  may  order  either  party  to  pro- 

duce books  or  papers — Consequen- 
ces of  a  refusal  to  produce. 

87.  In  petitions  for  dower  or  partition  the 

costs  are  at  the  discretion  of  the 
court. 
83.  Action  may  be  brought  against  the 
maker  of  a  bill.  &c.  jointly  withthe 
endorser,  or  against  all  or  any  one 
of  them. 

89.  On  joint  obligations,  (Slc.  of  copart- 

ners, &c.  action  may  be  brought 
against  all,  any  one  or  more. 

90.  Joint  obligations  shall  survive  against 

the  heirs,  executors,  &c.  of  the  de- 
ceased obligor. 

91.  How  judgment  is  to  be  entered  when 

the  suit  is  against  the  executor,  &c. 
of  the  deceased  obligor  and  the  sur- 
vivor. 

92.  When  more    actions   than  one   are 

brought  on  a  promissory  note,  &c. 
the  court  may  consolidate  them. 

93.  Judgment  bonds  void  as  to  power  to 

enter  judgment,  but  good  as  com- 
mon law  or  penal  bonds. 

94.  When  a  defendant  to  a  suit  in  the 

county  court  removes  himself  or  his 
property,  the  clerk  may  issue  an  ex- 
ecution to  any  county,  &c. 

95.  In  actions  for  money  due  by  contract, 

except  penal  bonds,  the  jury  must 
distinguish  between  principal  and 
interest,  and  the  judgment  for  prin- 
cipal shall  carry  interest. 

96.  In  an  action  on  a  single  bill,  &c.,  if 

defendant  makes  no  defence,  clerk 
may  calculate  interest  without  a 
writ  of  inquiry. 

97.  Petitions  may  be   filed  in  vacation — 

Clerk  to  issue  a  capias  upon  peti- 
tioner making  affidavit  of  the 
amount  of  his  demand. 

98.  When  a  petition  is  served  upon  one 

of  several  defendants,  and  the  others 
reside  out  of  the  State,  the  court 
shall  order  publication  to  be  made 
for  five  weeks. 

99.  Court  may  order  the  clerk  to  audit 

and  settle  accounts. 

100.  Any  two  justices  may  take  deposi- 

tions, to  be  read  on  petitions. 

101.  Fees  of  clerk  on  petitions. 

102.  Infants  may  sue  by  their  next  friend. 

103.  Either  party  to  the  suit  may  tender 

to  the  judge  a  bill  of  exceptions — 
Judge  to  sign  and  seal  the  same,  or 
if  he  refuse,  some  other  present  may 
sign  and  seal. 


Section 

104.  Actions  of  account  maybe  brought 
against  executors  and  administra- 
tors of  guardians,  &.c. 

105-  If  an  action  for  any  penalty  be 
brought  in  good  faith  and  defend- 
ant plead  a  former  judgment  against 
him,  &c.  plaintiff  may  reply  fraud, 
&c. 

106.  In  an  action  of  debt  on  a  bond,  &c. 

payment  may  be  pleaded. 

107.  In  an  action  of  debt  on  a  bond  with 

a  penalty,  if  the  defendant  bring 
into  court  the  principal,  interest 
and  costs,  the  bond  shall  be  deemed 
discharged,  &c. 

108.  Judgment  of  a  court  to  stand  till  re- 

versed. 

109.  Upon  an  appeal  by  a  defendant  from 

a  justice's  judgment  or  a  recordari 
obtained  by  a  defendant,  court  may 
compel  plaiiatifT  to  give  security, 
&c. 

110.  Appeals  from  a  justice  to  be  tried 

first  term  of  the  county  court  — 
Party  cast  to  pay  all  costs. 
HI.  If  plaintifi"  appeals  from  a  judgment 
in  his  favor  it  shall  be  at  his  costs 
unless  suflicient  reason  for  such  ap- 
peal is  shown. 

112.  Appeals  from  the  county  to  the  su- 

perior courts  how  to  be  tried. 

113.  The  increasing  day  in  leap  year  how 

to  be  counted. 

114.  No  execution  to  issue  on  a  judgment 

after  a  year  and  day  without  a  scire 
facias  to  revive  the  same. 

115.  Plaintiff  shall  not  be  nonsuited  after 

verdict. 

116.  Party  committed  in  execution  not  to 

be  discharged  on  habeas  corpus. 

117.  The  death   of  either  party  between 

verdict  and  judgment  shall  not  be 
assigned  for  error. 

118.  Administrator  de  bonis  non  may  have 

execution  on  judgment  obtained  by 
former  administrator. 

119.  lu  suits  upon  the  bonds  of  executors, 

administrators,  guardians,  &c.,upon 
motion  at  the  appearance  term,  a 
reference  may  be  made  to  have  an 
account  stated. 

120.  Any  cause  in  the  superior  court  either 

civil  or  criminal  may  be  removed 
on  affidavit  to  an  adjoining  county 
for  trial. 

121.  The  parties  to  any  suit  may  remove 

the  same  to  an  adjoining  county  by 
consent. 

122.  Upon   the   removal  of  a  cause  the 


Chap.  XXXI.]  courts,  county  and  superior, 


139 


123. 


124. 


12 


Section 

clerk  to  sead  a  transcript  together 
with  the  depositions,  &c.  filed 
therein . 

Cause  to  be  removed  on  affidavit  not 
more  than  twice. 

In  suits  involving  the  question  of 
boundary,  the  court  may  order  a 
survey — Proceedings  thereupon. 

Clerk  not  to  affix  the  seal  of  the 
court  to  process  to  be  executed  with- 
in the  county. 

126.  Sheriffs,  &c.  to  serve  all  notices  that 

may  be  necessary  in  any  proceeding 
in  law  or  equity. 

127.  How  notices  to  be  served. 

128.  Penalty   on   officers    for   failing     to 

serve   notices   or   making   a   false 

return. 
Notice  may  be  given  and   proved  as 

heretofore. 
The  return  of  a  sheriff  on   a  scire 
Jacias  that  he  has  executed  the  same 

sufficient  evidence  of  the  service. 


129. 


130. 


Section 

131.  Defendants  upon  trial  may  shew  that 

they  are  sureties,  and  the  jury  or 
justices  to  discriminate  the  princi- 
pal from  the  sureties. 

132.  In  such   case  the   officer   shall  levy 

first  on  the  property  of  the  princi- 
pal, &c. — Property  of  the  principal 
shall  be  first  sold, 

133.  A  judgment   for  the  costs   may  be 

given  against  the  plaintiff  and  the 
sureties  to  his  prosecution  bond,  up- 
on his  failing  to  prosecute  with 
success. 

134.  A  defendant  against  whom  judgment 

is  recovered  may  pay  the  money  to 
the  clerk  before  execution  issues. 

135.  Clerk  to  pay   over  the   same  to   the 

party  entitled  to  receive  it. 

136.  Judge,  how  to   deliver  his  charge  to 

the  jury, 

137.  Giuakers   may   wear  their    hats    ii\ 

court. 


1.  Be  it  enacted  by  the  General  Jlssembly  of  the  State  of  JTorth 
Carolina,  and  it  is  hereby  enacted  by  the   authority  of  the  sani&y 
That  the  justices  of  the  peace  within   this  State  shall  be  judges  of  Justices  of  the 
the  courts  of  pleas  and   quarter  sessions   of  the  several  counties,  V^^^^  ^".^^ 

/»  .  *  •'■  .      ,  iuu£r6s  01  tns 

for  which  they  are  appointed,  and  have  all  the  powers  incident  to  courts  of  pleas 
such  a  jurisdiction.      Said  courts  of  pleas  and  quarter  sessions  shalP"'^  fi"'^'"*®'' 

-  S6SS10I1S 

be  held  for  their  respective  counties  on  the  days  following,  to  wit: 

Anson  county,  on  the   second  Monday  in  January,  April,  July  At  what  times 

and  October.  shtn  b'^hw'^'^ 

iVshe,  fourth  Monday  in    February,  May,   August  and  Noveni' 
ber. 

Beaufort,  first  Monday  in  March,  June,  September  and  Decem- 
ber. 

Bertie,  second  Monday  in  February,  May,  August  and  Novem- 
ber. 

Bladen,  first  Monday  in  February,  May,  August  and  Novem- 
ber. 

Brunswick,  first  Monday  in  Marcli,  June,  September  and  De- 
cember. 

Buncombe-,  second  Monday  in  February,  first  Monday  in  July, 
and  the  third  Monday  after  the  fourth  in  March  and  September. 

Burke,  fourth  Monday  in  January,  April,  July  and  October. 

Cabarrus,  third  Monday  in  January,  April,  July  and  October. 

Camden,   first  Monday  in   February  and   August,    and  seventh 
Monday  after  the  fourth  Monday  of  March  and  September. 

Carteret,  third   Monday  in  March,  June,    September  and  De- 
cember. 


1.  1773,  c.    of  Davis'  Revisal.— 1820,  c.  1077.— 18.35,  c.  40,  41,  45  and  47.— 1834,  c. 
71.— 1833,  c.  25,  31,  32,  37  and  42,  amendment. 


140  '  COURTS,  COUNTY  AND  SUPERIOR.   [ChAP.  XXXI. 

Caswell,  first  Monday  after  the  fourth  Monday  of  March,  June, 
September  and  December. 

Chatham,  second  Monday  in  February,  May,  August  and  No- 
vember. 

Chowan,  first  Monday  in  do.  do.         do.     and   do. 

Columbus,  second  do.  in  do.  do;         do.     and    do. 

Craven,  do.      do.  in  do.  do.         do.     and   do. 

Cumberland,  first  Monday  in  March,  June,  September  and  De- 
cember. 

Currituck,  the  last  Monday  in  February,  May,  August  and  No- 
vember. 

Duplin,  third  Monday  in  January,  April,  July  and  October. 

Davidson,  second  Monday  in  February,  May,  August  and  No- 
vember. 

Davie,  the  fourth  Monday  in  February,  May,  August  and  No- 
vember. 

Edgecombe,  fourth  Monday  in     do.  do.  do.     and    do. 

Franklin,  second  Monday  in  March,  June,  September  and  De- 
cember. 

Gates,  third  Monday  in  February,  May,  August  and  November. 

Granville,  first  Monday  in     do.       do.         do.    and         do. 

Greene,  second     do.     in     do.       do.  do.    and         do. 

Guilford,  third       do.     in     do.       do.  do.    and         do. 

Halifax,     do.        do.     in     do.       do.         do.    and         do. 

Haywood,  last  Monday  in  January,  the  .first  Monday  after  the 
fourth  Monday  in  March  and  September,  and  the  Monday  next  be- 
fore the  last  Monday  in  June. 

Hertford,  fourth  Monday  in  February,  May,  August  and  No- 
vember. 

Hyde,  last  Monday  in  do.  do.  do.  and  do. 

Iredell,  third  Monday  in  February  and  August,  and  on  the  fifth 
Monday  after  the  fourth  in  March  and  September. 

Johnston,  fourth  Monday  in  February,  May,  August  and  No- 
vember. 

Jones,  second  Monday  in  March,  June,  September  and  De- 
cember. 

Lenoir,  first  Monday  in  January,  April,  July  and  October. 

Lincoln,  third  Monday  in  January  and  July,  and  the  second  Mon- 
day after  the  third  Monday  in  February  and  August. 

Martin,  second  Monday  in  January,  April,  July  and  October. 

Mecklenburg,  fourth  Monday  in  January,  April,  July  and  October. 

Montgomery,  first  Monday  in  April,  July,  October  and  January. 

Moore,  third  Monday  in  February,  August,  May  and  November. 

Macon,  oh  the  fourth  Monday  of  March  and  September,  and  on 
the  Monday  before  the  last  Monday  of  January,  and  on  the  second 
Monday  before  the  last  Monday  of  June. 

Nash,  second  Monday  in  February,  May,  August  and  November. 

New  Hanover,  second  Monday  in  March,  June,  September 
and  December. 

Northampton,  first  Monday  in  March,  June,  September  and 
December. 


Chap.  XXXI.]  courts,  county  and  superior.  141 

Onslow,  first  Monday  in  February,  May,  August  and  Novem- 
ber. 

Orange,  fourth  Monday  in  do.  -do.       do.      and       do. 

Pasquotank,  first  Monday  in  March,  June,  September  and  De- 
cember. 

Perquimons,  second  Monday  in  February,  May,  August  and 
November. 

Person,  second  Monday  in  March,  June,  September  and  De- 
cember. 

Pitt,  first  Monday  in  February,  May,  August  and  November.  , 

Randolph,  first  do.  do.  do.       do.       and       do. 

Richmond,  third  Monday  in  January,  April,  July  and  October. 

Rowan,  third  Monday  in  February,  May,  August  and  Novem- 
ber. 

Robeson,  fourth  Monday         do.         do.        do.        and     do. 

Rockingham,  fourth  Monday  do.         do.        do.        and     do. 

Rutherford,  on  the  second  Monday  in  January  and  July,  and  the 
fifth  Monday  after  the  fourth  Monday  in  March  and  September. 

Sampson,  third  Monday  in  February,  August,  May  and  No- 
vember. 

Stokes,  second  Monday  in  March,  June,  September  and  De- 
cember. 

Surry,  second  Monday  in  February,  May,  August  and  No- 
vember. 

Tyrrel,  fourth  Monday  in  January,  April,  July  and  October. 

Wake,  third   Monday  in  February,  May,  August  and  November. 

Warren,  fourth       do.  in      do.  do.       do.     and        do. 

Washington,  third  do.  in      do.  do.       do.     and        do. 

Wayne,  third  do.  in      do.  do.       do.      and        do. 

Wilkes,  first  Monday  after  the  fourth  Monday  of  June  and  July, 
and  the  second  Monday  in  March  and  September. 

Yancey,  first  Monday  in  February,  last  Monday  in  June,  and  se- 
cond Monday  after  the  fourth  Monday  in  March  and  September. 

2.  If  the  business  of  any  of  the    said  courts  cannot  be  deter- Said  court  may 
mined  on  the  first  day  of  the  term,  the  justices  may  adjourn  from  the  business  ^ 
day  to  day,  not  exceeding  six  days,  at  the  end    of  which  time  the  shall  require  it. 
causes  and  matters,  which  may  be  depending  before  them  and  not 

then  finally  determined,  shall  be  continued  to  the  next  succeeding 
term. 

3.  If,  by  reason  of  indisposition  or  other  inability,  bad  weather  One  justice 
or  other  accidents,  it   shall  so   happen  that  a  sufficient  number  of  J^g^g^y^.""™^ 
justices  shall  not  meet  for  holding  the  said  courts  or  any  of  them  day  to  day  not 
on  the  days  by  this  act  appointed,  in  such  case  it  shall  and  may  be  ^^yg'^'Jj'^fi/^'''^® 
lawful  for  any  one  justice  to  adjourn  the  court,  whereof  he  shall  sufficient  num- 
be  a  member,  from  day  to  day,   not  exceeding  three  days,  until  a  j"jfjg^^ggg*° 
sufficient  number  of  justices  can  attend  to  hold  the  court. 

4.  None  of  the  said  county  courts  nor  any  process  in   any  of  Justices  failing 

them   depending  shall  be  discontinued,  for  or   by   reason  of  the  not  to  discon- 
tinue the  court, 
n    ,„_„       ,,^       ^g  or  any  process 

2.  1/7/,  C.  Ho,  s.  53.  therpin 

3.  1777,  c.  115,  s.  54.  therein. 

4.  1777,  c.    115,  S.   55. 


142  COURTS,  COUNTY  AND  SUPERIOR.    [ChAP.  XXXI. 

justices  failing  to  hold  court  upon  the  day  by  law  appointed,  or  of 
any  alteration  of  any  of  the  days  appointed  for  holding  the  said 
courts,  but  in  every  such  case  all  such  process,  matters  and  things 
dep^ding  shall  stand  continued,  and  all  appearances  upon  returns 
of  process  shall  be  made,  to  the  next  succeeding  term  in  course, 
in  the  same  manner  as  if  such  succeeding  term  had  been  th6  same 
term  to  which  such  process  had  stood  continued  or  such  returns 
or  appearances  had  been  made  ;  and  all  recognizances,  bonds  and 
obligations  for  appearances  and  all  returns  shall  be  of  the  same 
^  force  and  validity,  for  the  appearance  of  any  person  or  persons  at 

such  succeeding  term,  and  all  summonses  for  witnesses  as  effec- 
tual, as  if  the  next  succeeding  term  had  been  expressly  mentioned 
therein. 
''^^h^?i'"^r^*^*'^  5.  The  justices  of  the  said  county  courts,  or  any  three  of  them, 
terms  of  said  shall  be  competent  to  hold  the  terms  thereof,  and  shall  and  may 
courts.  Their  j^ke  cognizance  and  have  full  power  and  authority  and  iurisdiction 
to  hear,  try  and  determme  all  causes  oi  a  civil  nature  whatever  at 
the  common  law,  within  their  respective  counties,  where  the 
original  jurisdiction  is  not  by  any  act  of  the  General  Assembly 
confined  to  a  single  magistrate  or  to  the  supreme  or  superior 
courts  ;  of  all  penalties  to  the  amount  of  sixty  dollars  and  upwards, 
incurred  by  violation  of  the  penal  statutes  of  this  State  or  of  laws 
passed  by  the  congress  of  the  United  States,  where,  by  such  law, 
jurisdiction  is  given  to  the  courts  of  the  several  states  ;  of  suits 
for  dower,  partition,  fihal  portions,  legacies  and  distributive  shares 
of  intestates'  estates  and  all  other  matters  relating  thereto  ;  to  try, 
hear  and  determine  all  matters  and  things  relating  to  orphans,  idiots 
and  lunatics  and  the  management  of  their  estates,  in  like  manner 
as  courts  of  chancery  exercise  jurisdiction  in  such  cases  ;  to  try, 
*  hear  and  determine  all  petit  larcenies,   assaults  and  batteries,  all 

trespasses  and  breaches  of  the  peace   and  other  misdemeanors  of 
what   kind   soever  of  an  inferior   nature  ;  and  of  all  other  crimi- 
nal cases  where  the  judgment  upon  conviction  shall  not  extend  to 
life,  limb   or  member  ;  and  in  all  other  cases  where  jurisdiction 
and  power  to  act  is  given  by  any  act  of  the  General  Assembly. 
Court  may  pur-      6.   The  justices  of  said  courts  shall  have  power  and  authority  to 
books  as'^  a     purchase  such  books,  as  they  shall  deem  necessary,  to  be  kept  by 
be  deemed       their  clerk  in  his  office  for  the  use  of  said  court  :  and  the  said 
necessary.       justices,  a  majority  of  them  being  present,  at  the  first  term  of  said 
nmforU™o'f  ^the  courts  which  may  happen  after  the  first  day  of  January  in  each  and 
justices"  being    every  year,  may  in  their  discretion  appoint  five  of  their  number  to 
appobta'spe-   ^°^^  ^^^^  courts  for  one  year,  any  three  of  whom  shall  have  full 
ciai  court,  &,c.   power  and  authority  to  act ;  and  they  shall  be  entitled  to  receive, 
as  a  compensation  for  their  services,    a  sum  not  exceeding  three 
dollars  nor  less  than  one   dollar  per   day  for   each  and  every  day 
they  shall  hold  said  court,   which  sum  shall  be  fixed  by  the  said 
court,  a  majority  of  the  justices  being  present,   and  shall  be  paid 
out  of  the  funds  of  said  county,  upon  the  certificate  of  the  clerk 

5.  1777,  c.  115,  s.  56—1785,  c.  233,  s.  1.— 1808,  c.  741.— 1809,  c.  765.— 1803,  c, 
627.— 1S15,  c.  894.— 1762,  c.  60.— 1784,  c.  228. 

6.  1749,  c.  49,  s.  1.  amended. 


Chap.  XXXI.]  courts,  county  and  superior.  143 

of  said    court   showing   the  number    of    days    each  justice   has 
attended. 

7.  If  any  county  court   clerk  shall  abuse  or  destroy,    or  suffer  Penalty  on  the 
to  be  abused  or  destroyed,  any  of  the  books  so  committed  to  his  9^^''^^^^°^'^^"*- 
care,  he  shall  be  fined  at  the  discretion  of  the   court  for  such  his  purchased,  &c. 
neglect. 

8.  Said  court  shall  have  full  power  to  lay  such  an  additional  tax  Court  may  lay 
on  their  respective   counties  as  shall  be  sufficient  to  purchase  and  chas1n°'said 
provide  the  books  aforesaid.  books. 

9.  A  superior  court  shall  be  held  by  a  judge   thereof,    at  the  A  superior 
court  house  in  each  county  in  the  State,  twice  in  every  year.  be^holden'^iii  ^° 

10.  The    State    shall   be   divided    into     seven    circuits: —      each  county. 
The  first  circuit  to  be  composed  of  the  counties  of  Currituck,  The  State  to  be 

Camden,    Pasquotank,   Perquimons,    Chowan,    Gates,   Hertford,  seven^circuks. 
Bertie,  Washington,  and  Tyrrel  : 

The  second  circuit  to  be  composed  of  the  counties  of  Jones, 
Carteret,  Onslow,  Duplin,  Wayne,  Greene,  Lenoir,  Craven, 
Beaufort,  and  Hyde  : 

The  third  circuit  to  be  composed  of  the  counties  of  Pitt,  Edge- 
combe, Nash,  Johnston,  Wake,  Franklin,  Warren,  Halifax, 
Northampton,  and  Martin  : 

The  fourth  circuit  to  be  composed  of  the  counties  of  Chatham, 
Randolph,  Davidson,  Stokes,  Rockingham,  Guilford,  Caswell, 
Person,  Granville,  and  Orange  : 

The  fifth  circuit  to  be  composed  of  the  counties  of  Montgom- 
ery, Anson,  Richmond,  Moore,  Robeson,  Cumberland,  Bladen, 
Columbus,  Brunswick,  New  Hanover,  and  Sampson  : 

The  sixth  circuit  to  be  composed  of  the  counties  of  Surry, 
Wilkes,  Ashe,  Lincoln,  Iredell,  Cabarrus,  Mecklenburg,  Davie, 
and  Rowan  : 

And  the  seventh  circuit  to  be  composed  of  the  counties  of  Ma- 
con, Haywood,  Yancey,  Buncombe,  Rutherford,  and  Burke. 

1 1 .  The  superior  courts  of  law  and  equity  in  the  first  judicial  -vyrhen  the  su- 
circuit,  in  the  several  counties  thereof,  shall  be  opened  and  held  perior  courts 
at  the  times  hereinafter  expressed,  and  each  respective  court  shall  ^^^'^11^^^^.^°'^^?° 
continue  in   session  one  week,   unless   the  business  of  the   court  cult. 

shall  be  sooner  determined  ;  viz  :  In  the  county  of  Tyrrel,  the 
said  courts  shall  be  held  on  the  first  Monday  in  March  and  Sep- 
tember ;  in  the  county  of  Washington,  on  the  second  Monday  in 
March  and  September  ;  in  the  county  of  Bertie,  on  the  third  Mon- 
day of  March  and  September  ;  in  the  county  of  Hertford,  on  the 
fourth  Monday  of  March  and  September  ;  in  the  county  of  Gates, 
on  the  first  Monday  after  the  fourth  Monday  of  Marcli  and  Sep- 
tember ;  in  the  county  of  Chowan,  on  the  second  Monday  after  the 
fourth  Monday  of  March  and  September  ;  in  the  county  of  Perqui- 
mons, on  the  third  Monday  after  the  fourth  Monday  of  March  and 
September  ;  in  the   county  of  Pasquotank,  on  the  fourth  Monday 

7.  1749,  c.  49,  s.  2. 

8.  1749,  c.  49,  s.  3. 

9.  1806,  c.  693,  s.  1. 

10.  1806,  c.  693,  s.  2,  amended. 

11.  1818,  c.  937,  s.  1. 


144 


COURTS,  COUNTY  AND  SUPERIOR.   [CHAr.  XXXI. 


When  in  the 
second  circuit, 


When  in  the 
third  circuit. 


When  in  the 
fourth  circuit. 


after  the  fourth  Monday  of  March  and  September  ;  in  the  county 
of  Camden,  on  the  fifth  Monday  after  the  fourth  Monday  of  March 
and  September  ;  in  the  county  of  Currituck,  on  the  sixth  Monday 
after  the  fourth  Monday  of  March  and  September. 

12.  The  courts  in  the  counties  composing  the  second  circuit 
shall  be  held  on  the  following  times,  to  wit  :  In  the  county  of 
Onslow,  on  the  first  Monday  of  March  and  September;  in  the  coun- 
ty of  Jones,  on  the  Wednesday  next  after  the  second  Monday  of 
March  and  September;  in  the  county  of  Lenoir,  on  the  third  Mon- 
day of  March  and  September  ;  in  the  county  of  Duplin,  on  the 
fourth  Monday  of  March  and  September  ;  in  the  county  of  Wayne, 
on  the  first  Monday  after  the  fourth  Monday  of  March  and  Septem- 
ber ;  in  the  county  of  Greene,  on  the  second  Monday  after  the 
fourth  Monday  of  March  and  September  ;  in  the  county  of  Carte- 
ret, on  the  third  Monday  after  the  fourth  Monday  in  March  and 
September  ;  in  the  county  of  Craven,  on  the  fourth  Monday  after 
the  fourth  Monday  of  March  and  September  ;  in  the  county  of 
Beaufort,  on  the  fifth  Monday  after  the  fourth  Monday  of  March 
and  September  ;  in  the  county  of  Hyde,  on  the  sixth  Monday  after 
the  fourth  Monday  of  March  and  September. 

13.  The  courts  in  the  counties  composing  the  third  circuit  shall 
be  held  on  the  following  times,  to  wit :  In  the  county  of  Martin, 
on  the  Monday  before  the  first  Monday  in  March  and  September  ; 
in  the  county  of  Pitt,  on  the  first  Monday  in  March  and  Septem- 
ber ;  Edgecombe,  the  second  Monday  in  March  and  September  ; 
Nash,  the  third  Monday  in  March  and  September  ;  Johnston,  the 
fourth  Monday  in  March  and  September  ;  Wake,  the  first  Monday 
after  the  fourth  Monday  in  March  and  September  ;  Franklin,  the 
second  Monday  after  the  fourth  Monday  in  March  and  September  ; 
Warren,  the  third  Monday  after  the  fourth  Monday  in  March  and 
September  ;  Halifax,  the  fourth  Monday  after  the  fourth  Monday 
of  March  and  September  ;  Northampton,  the  fifth  Monday  after 
the  fourth  Monday  of  March  and  September. 

14.  The  courts  in  the  counties  composing  the  fourth  circuit 
shall  be  held  on  the  following  times,  to  wit  :  In  the  county  of 
Granville,  on  the  first  Monday  in  March  and  September  ;  Orange, 
the  second  Monday  in  March  and  September  ;  Chatham,  the 
third  Monday  in  March  and  September  ;  Randolph,  the  fourth 
Monday  in  March  and  September  ;  Davidson,  on  the  first  Monday 
after  the  fourth  Monday  of  March  and  September  ;  Stokes,  the 
second  Monday  after  the  fourth  Monday  of  March  and  Septem- 
ber ;  Guilford,  the  third  and  fourth  Mondays  after  the  fourth  Mon- 
day of  March  and  September  ;  Rockingham,  the  fifth  Monday  af- 
ter the  fourth  Monday  of  March  and  September  ;  Caswell,  the 
sixth  Monday  after  the  fourth  Monday  of  March  and  September  ; 
Person,  the  seventh  Monday  after  the  fourth  Monday  of  March 
and  September. 


12.  1806,  c.  693,  s.  3.— 1818,  c.  986.— 1821,  c.  1127,  s.  1.— 1S21,  c.  1128.— 1830,  c.  48, 
s.  1.— 1833,  c.  35,  s.  1. 

13.  1806,  c.  693,  s.  3—1821,  c.  1123.-1825,  c  1303. 

14.  1806,  c.  963,  s.  3.-1824,  c.  1231,  s.  1.— 1825,  c.  1304. 


Chap.  XXXI.]  courts,  county  and  superior.  14d 

15.  The  courts    in  the  counties  composing    the    fifth  circuit  When  in  ths 
shall  beheld  on  the  following  times,   to  wit  :  In  the  county  of^^'^'^'^^'"'^""' 
Moore,  on  the  last  Monday  of  February  and   on  the  last   Monday 

of  August  ;  Montgomery,  on  the  first  Monday  in  March  and  the 
first  Monday  of  September  ;  Anson,  on  the  second  Monday  of 
March  and  the  second  Monday  of  September  ;  Richmond,  on  the 
third  Monday  of  March  and  the  fourth  Monday  of  September  ; 
Robeson,  on  the  fourth  Monday  of  March  and  the  first  Monday 
after  the  fourth  Monday  of  September  ;  Bladen,  on  the  first  Mon- 
day after  the  fourth  Monday  of  March  and  the  second  Monday  af- 
ter the  fourth  Monday  in  September  ;  Columbus,  on  the  second 
Monday  after  the  fourth  Monday  in  March  and  on  the  third  Mon- 
day after  the  fourth  Monday  in  September  ;  Brunswick,  on  the 
third  Monday  after  the  fourth  Monday  in  March  and  on  the  fourth 
Monday  after  the  fourth  Monday  of  September  ;  New  Hanover,  on 
the  fourth  Monday  after  the  fourth  Monday  of  March  and  on  the 
fifth  Monday  after  the  fourth  Monday  of  September  ;  Sampson, 
on  the  fifth  Monday  after  the  fourth  Monday  of  March  and  on  the 
sixth  Monday  after  the  fourth  Monday  of  September  ;  Cumber- 
land, on  the  sixth  Monday  after  the  fourth  Monday  of  March  and 
on  the  seventh  Monday  after  the  fourth  Monday  of  September,  in 
each  and  every  year. 

16.  The  term  of  Anson  superior  court  of  law  and  equity  shall  ^"son  court 
continue  two  weeks  successively  at  the  fall  term  thereof,   whenev-  two  weeks  in 
er  the  business  of  the  said  court  requires  it.  the  fall. 

17.  The  courts  in  the  counties  composing  the  sixth  circuit  shall  "li^'^-^^^^^^j.^®"" 
be  held  on  the  following  times,  to  wit  :  Cabarrus,   on  the  second  shall  be  holden 
Monday  in  February  and  August ;  Mecklenburg,  on  the  third  Mon-  circuit ^'^"^'^ 
day  in  February  and  August ;  Lincoln,  on  the  second  Monday  af- 
ter the  third  Monday  of  February  and  August ;  Iredellj  on  the 

third  Monday  after  the  third  Monday  in  February  and  August  ; 
Rowan,  on  the  fourth  Monday  after  the  third  Monday  in  Februa- 
ry and  August  ;  Surry,  on  the  fifth  Monday  after  the  third  Mon- 
day in  February  and  August  ;  Ashe,  on  the  sixth  Monday  after 
the  third  Monday  of  February  and  August ;  Wilkes,  on  the  seventh 
Monday  after  the  third  Monday  of  February  and  August ;  Davie, 
on  the  eighth  Monday  after  the  third  Monday  of  February  and 
August.  And  the  term  of  Mecklenburg  superior  court  shall  be 
held  two  weeks,  when  necessary. 

18.  The  courts  in  the  counties  composing  tlie  seventh  circuit  ^'^''"J'^^i^^^f-, 

1     11  1       I     1  1  1        r  II        •  •  ^    ■         -xt  1        •  seventh  circuit. 

snail  be  held  on  the  lollowmg  tmies,  to  wit  :  Macon,  to  begm  on 
the  fourth  Monday  of  March  and  September  ;  Haywood,  on  the 
first  Monday  after  the  fourth  Monday  of  March  and  September  ; 
Yancey,  on  the  second  Monday  after  the  fourth  Monday  of  March 
and  September  ;  Buncombe,  on  the  third  Monday  after  the  fourth 
Monday  in  March  and  September  ;  Rutherford,  on  the  fifth  Mon- 
day after  the  fourth  Monday  of  March  and  September  ;  and 
Burke,  on  the  seventh  Monday  after  the  fourth  Monday  of  March 

15.  1822,  c.  1179. 

16.  Amendment. 

17.  1333,  c.  27.— 1834,  c.  12.— 1831,  c.  14.— 1836,  c.  13. 
IS.  Amendment. — 1836,  c.   13. 

VOL.    I.  19  . 


146  COURTS,  COUNTY  AND  SUPERIOR.    [ChaP.  XXXI. 

and  September,  in  each  and  every  year  hereafter.    And  the  terms 

of  Buncombe,   Rutherford   and  Burke   superior  courts  shall  each 

continue  two  weeks,  when  necessary. 

Said  courts  10.  Nothing  contained  in  this  act,  fixing  the  duration  of,  or  as- 

cmen  longer      signing  a  period  to  the   close   of  the  term  of  any  superior  court, 

than  one  week  shall  prevent  the  judge  holding  the  same  from  keeping  it  open  a 

oT  cksing^a"^*^  longer  period,   when  the  trial  of  a  capital   case  shall  have  been 

trial  in  a  cap-    commenced  and    the  jury  not   have  returned  their  verdict,  but 

ita  case.         j^  ^^^  ^^^^j^  ^^^^  ^^^q  judge  holding  the   court  is  hereby  authorized 

to  continue  said   court  or  adjourn   the  same  from   day  to  day,  for 

the  purpose  of  finishing  the  trial  and  the  reception  of  the  verdict,  and 

rendermg  the  judgment  of  the  law  thereon,  in  any  capital  case,  the 

trial  whereof  may  have  previously  commenced. 

Said  courts  to        20.   The  said  courts   shall  be  holden  by  judges,   being  men  of 

imlffes'''^\heir'^^ilities,  integrity  and  learned  in  the  law,  who  shall  have  cogni- 

powers  and  ju- zance  and  legal  jurisdiction  of  all  pleas  real,  personal  and  mixed, 

nsdictioa.        ^^^  ^j^^  ^^jj  ^^^j^g  ^^^^  demands  relative  to  legacies,  filial  portions 

and  estates  of  intestates  ;  all  pleas  of  the  State  and  criminal  mat- 
ters of  what  nature,  degree  or  denomination  soever,  whether 
brought  before  them  by  original  or  mesne  process,  or  by  certiora- 
ri, writ  of  error,  appeal  from  any  inferior  court  or  by  any  other 
way  or  means  whatsoever  ;  and  they  are  hereby  declared  to  have 
full  power  and  authority  to  give  judgment  and  to  award  execution 
and  all  necessary  process  thereon,  and  shall  have,  use,  exercise, 
and  enjoy  the  same  powers  and  authorities,  rights,  privileges  and 
pre-eminences,  as  were  had,  used,  exercised  and  enjoyed  by  any 
former  judges  of  the  superior  courts  in  this  State,  except  where  it 
•  is  or  may  be  otherwise  directed  by  this  or  any  other  act  of  the 
legislature. 
Oaths  to  be  21.    The  said  judges,  before  they  act  as   such,  shall,  in  open 

judges.  court,  or  before  the  governor  for  the  time  being,  or  before  one  of 

the  judges  of  the  superior  courts,  or  before  some  justice  of  the 
peace,  take  the  oath  appointed  for  the  qualification  of  pubhc  offi- 
cers and  also  an  oath  of  office. 
Oaths  taken  to  ^^-  ^^  shall  be  the  duty  of  the  officers  or  court,  before  whom 
be  subscribed  such  judge  or  judges  shall  qualify,  to  cause  such  judge  or  judges 
and  returneTto  to  Subscribe  the  oaths,  by  him  or  them  taken,  and  having  certified 
the  secretary  of  the  same  shall  return  said  oaths  to  the  secretary  of  state,  who 
state  gj^^l^  carefully  preserve  the  same  ;  and  if  any  judge  shall  act  in 

judge  for  acting  his  office  before  he  shall  have  taken  the  oaths  hereby  directed,  he 
without  taking  gj^^^j}  forfeit  and  pay  two  thousand  dollars,  to  be  recovered  by  ac- 
tion of  debt  in  any  of  the  superior  courts,  one  half  to  the  use  of  the 
State  and  the  other  half  to  the  person  who  shall  sue  for  the  same. 
I      Judges  to  allot      23.   The  judges  of  the   superior  courts  or  a  majority  of  them 
among'them-    ^^^^^  ^^^^  ^^^  circuits  among  themselves,  and  it  shall  be  their  duty 
selves  and  pub-  to  causc  a  notification   of  such  allotment  to  be  published  in  the 

iish  the  same. 

19.  1830,  c.  22. 

20.  1777,  c  115,  s.  2.— 1807,  c.  712,  s.  4.— 1808,  c.  741.— 1814,  c.  876.— 1814,  c.  869.— 
1815,  c.  894.-1818,  c.  968.-1818,  c.  971.-1818,  c.  985,  s.  3.— 1829,  c.  19,  s.  3. 

21.  1777,  c.  115,  s,  5.— 1806,  c.  694,  s.  13. 

22.  1S06,  c.  694,  s.  13.— 1774,  c.  115.  s.  6. 

23.  1806,  c.  693,  S.  6.— 1818,  C.  963,  s.  10.-1521,  c.  1079,  s.  1. 


^   Ju  etc, d/i   _  <  e-cdZie^  / If  ^  S^  ^  ■■    C4L^  ^  i' 


Chap.  XXXL]  courts,  couwty  and  superior.  147 

State  Gazette,  by  the  first  day  of  February  and  the  first  day  of 
August  preceding  each  and  every  circuit,  for  which  such  allot- 
ment shall  be  made,  provided  that  no  judge  shall  be  allotted  the 
same  circuit  twice  in  succession. 

24.  The  said  iudges  may  exchange   with   each  other  for  any  Ju'^S^s  mar 

.    •>  ^    ~       .       ■'.  ^  *'  exchange  cir- 

court  or  courts  jn  their  cu'cuits.  cuits. 

25.  If  some  one   of  the  said  judges  shall  not  attend  and  hold  If  no  judge  at- 
each  of  the  superior  courts,  on  the  day  by  law  prescribed  for  hold-^!^"^*'^^!^^''^^ 
ing  such  courts,  the  sheriff'  of  the  county  or  his  lawful  deputy  shall  term,  the  sher- 
open  and  adjourn  such  court,  from   day  to   day,  until  one  of  the  j^^J^'^^j.^^j^' > 
said  judges  shall   attend  and   hold  the  same,  or  until  the  third  day  to  day  till  the 
appointed   for  the  holding  thereof,   on  which  said  third  day  the      '^  ^^^' 
sheriff  or  his  lawful  deputy  shall  adjourn  the   same  until  the  next 

court,  to  which  time  all  actions,  pleas,  process  and  other  matters 
pending  in  the  said  court  shall  be  continued  and  have  day  as  if  the 
said  court  had  been  duly  held. 

26.  The  courts  of  pleas  and  quarter  sessions  at  the  first  term  County  court  to 
which  shall  be  holden  after  the  first  day  of  January  next,  and  once  f°om  ^hi"fs/of 
at  least  in  every  two  years  thereafter,  shall  cause  their  clerk  to  lay  taxables, taking 
before  them  the  tax  returns  of  the  preceding  year  for  their  coun-go^s  well^qual- 
ty,  from  which  they  shall  select  the  names  of  such  persons  onlyified. 

as  are  freeholders  and  as  ai-e  well  quahfied  to  act  as  jurors,  a  fist 
of  which  names  shall  be  drawn  out  by  their  clerk  and  constitute 
the  jury  hst  ;  and  if  said  tax  returns  shall  not  contain  the  names  of 
all  the  inhabitants  of  their  said  county,  who  in  their  opinion  are 
well  qualified  to  act  as  such  jurors,  they  shall  cause  the  names  of 
all  such  persons  to  be  inserted  on  their  said  jury  hst,  provided  all 
such  persons  so  selected  shall  by  law  be  qualified  to  act  as  jurors  ; 
which  jury  Hst  so  made  up  shall  continue  for  two  years  in  its  ope- 
ration, at  the  end  of  which  time  it  shall  be  the  duty  of  the  said  continue  and  be 
court  and  they  are  hereby  required  to  examine  carefully  the  jury  examined  every 
lists  already  made  out,  and  dihgently  inquire  if  any  persons  quaU-  ^°  Y<^°-^^- 
fied  to  be  jurors  as  abovementioned  are  omitted,  and  whether  any 
persons  not  qualified  to  be  jurors  as  abovementioned  have  been  in- 
serted, and  if  they  find  that  any  have  been  omitted  they  shall  add  them 
to  the  jury  hst  to  be  drawn  as  above  directed,  and  if  they  find  that 
any  have  been  inserted  not  possessing  the  requisite  qualifications,  they 
shall  direct  the  name  of  such  person  to  be  stricken  out  from  the  jury 
list ;  and  to  obtain  full  information  on  this  subject,  the  said  courts  may 
examine  on  oath  or  affirmation  any  person   they  may  think  proper.  b      f 

27.  The  said  courts  shall  cause  the  names  so  contained  on  their  jurors  to  be 
iury  list  to  be  written  on  small  scrolls  of  paper  of  equal  size,  and  drawn  for  the 

I  •    .         X.         ^     ^  1   r         1  1  •    1        1     n    1  superior  courts, 

put  mto  a  box  to  be  procured  lor  that   purpose,  which   shall   have  and  how  they 
two  divisions  marked  No.  1  and  2,  and  two  locks,  the  key  of  one  are  to  be 

QrELWD. 

to  be  safely  kept  by  the  sheriff  of  the  county,  the  other  by  the 
chairman  of  the  county  court,  and  the  box  by  the  clerk  of  said 
court  ;  and  the  said  justices  at  each  and  every  session  of  their  said 
court,  which  shall  happen  next  preceding  the  sitting  of  the  superior 

24.  1821,  c.  1079,  s.  2. 

25.  1806,  c.  694,  s.  2.— 1777,  c.  115,  s.  12. 

26.  1806,  c.  694,  s.  1.— 1779,  c.  157,  s.  2.— 1807,  c.  712,  s.  1  and  3. 

27.  1806,  c.  694,  s.  1.— 1817,  c.  935.— 1810,  c.  801. 


150 


COURTS,  COUNTY  AND  SUPERIOR.   [ChAP.  XXXI. 


How  the  petit 
jurors  shall  be 
sworn  in  civil 
causes. 


How  in  State 
cases  not 
capital. 


Proviso,  that 
the  usual  chal- 
lenges shall  not 
be  affected. 


Names  of  the 
jurors  to  be 
called  over  in 
the  hearing  of 
the  parties  be- 
fore empanel- 
ling them. 


Constable  to  be 
sworn  to  at- 
tend juries. 


7^ 


Actions  where 
to  be  brought. 


tied  to  be  sworn  in  the  terms  of  their  own  religion,   as  heretofore 
prescribed  by  law  and  observed  in  the  trial  of  civil  cases. 

36.  The  clerks  of  said  courts  shall,  at  the  beginning  of  the  court, 
swear  or  affirm  such  of  the  petit  jury  as  are  of  the  original  panel 
well  and  truly  to  try  all  civil  causes  that  shall  come  before  them 
during  the  term,  according  to  the  evidence  given  thereon  ;  and  if 
there  should  not  be  enough  of  the  original  panel,  the  talesmen 
shall  take  the  same  oath  or  affirmation  to  try  all  such  causes  as 
shall  come  before  them  during  the  day  ;  and  in  the  trial  of  all 
pleas  and  prosecutions  for  offences,  not  capital,  unless  in  cases 
where  the  court  shall  otherwise  direct,  petit  jurors  of  the  original 
panel  as  well  as  talesmen  shall  be  sworn  or  affirmed,  as  the  case 
may  be,  well  and  truly  to  try  all  issues  of  traverse  that  shall  come 
before  them  during  the  day.  Provided,  nothing  herein  contained 
shall  be  so  construed  as  to  prevent  the  usual  challenges  in  law  to 
the  whole  jury  so  sworn  or  to  any  of  them  ;  and  if  by  reason  of 
such  challenge  any  juror  shall  be  withdrawn,  his  place  on  such 
jury  shall  be  supplied  by  any  of  the  original  venire,  or  of  the  by- 
standers by  law  qualified  to  serve  as  jurors. 

37.  The  clerks  of  the  several  superior  and  county  courts,  be- 
fore a  jury  shall  be  empanelled  to  try  the  issue  or  issues  in 
any  civil  suit,  shall  read  over  the  names  of  the  jury  upon  the  panel 
in  the  presence  and  hearing  of  the  parties  or  their  counsel ;  and  it 
shall  be  competent  for  the  said  parties,  or  their  counsel  for  them,  to 
challenge  peremptorily  four  jurors  upon  the  said  panel,  without 
showing  any  cause  therefor,  which  challenge  shall  be  allowed  by 
the  court. 

38.  When  any  constable  shall  be  appointed  or  summoned 
to  attend  any  of  the  superior  or  county  courts  (except  such  as  may 
be  appointed  to  attend  the  grand  jury),  it  shall  be  the  duty  of  the 
clerk,  at  the  time  of  the  first  going  out  of  a  jury  on  the  trial  of  any 
civil  cause,  to  administer  an  oath  to  the  constable  faithfully  to  at- 
tend the  several  juries  that  shall  or  may  be  put  under  his  care  during 
that  term,  that  shall  be  charged  in  the  trial  of  any  civil  cause  ;  and 
after  the  said  constable  shall  be  once  sworn,  as  herein  mentioned, 
he  shall  be  considered  to  all  intents  and  purposes  as  acting  on  oath, 
upon  the  attendance  of  every  jury  that  he  may  be  called  upon  to 
attend  during  that  term. 

PRACTICE,  PLEAS  AND  PROCESS. 

39.  All  real  actions,  actions  of  ejectment,  trespass  quare  clau- 
sum /regit,  suits  on  penal  statutes  and  pleas  of  the  State,  shall  be 
commenced  in  the  court  of  the  county  wherein  the  cause  of  action 
shall  arise,  or  the  offence  be  committed,  and  not  elsewhere  ;  and 
all  actions  of  debt,  other  than  on  penal  statute,  all  actions  of  deti- 
nue and  replevin,  actions  of  account  render,  assault  and  battery, 
and  for  the  unlawful  taking  of  goods,  all  actions  upon  the  case,  and 


Y 


36.  1790,  c.  321.— 1822,  c.  1133,  s.  1. 

37.  1796,  c.  452,  s.  2.— 1S12,  c.  833. 

38.  1801,  c.  592,  s.  2. 

39.  1777,  c.  11.5,  s.  9.— 1806,  c.  693. 


Chap.  XXXI.]  courts,  county  and  superior.  15] 

suits  for  legacies,  and  for  distributive  shares  of  intestates'  estates, 
shall  be  brought  to  the  court  of  the  county  where  both  parties  re- 
side ;  and  where  the  parties  live  in  different  counties,  shall  be 
brought  to  the  court  of  either  county,  at  the  option  of  the  plaintiff ; 
and,  where  the  plaintiff  shall  reside  beyond  seas,  or  in  a  different 
state  or  government,  shall  be  brought  to  the  court  of  the  county 
where  the  defendant  resides  :  And  when  any  action  or  suit  shaU  be  tLx°brou^c!iiuo 
brought  -otherwise  than  is  herein  directed,  such  action  or  suit  may  be  abated  on 
be  abated  on  the  plea  of  the  defendant.  ^  ^^' 

40.  No    suit    shall  be    originally    commenced  in  any  of   the  No  suit  to  be 
said  courts  for  any  debt  or  demand  of  less  value  than  sixty  dollars,  court^for^an™^ 
for  an  unliquidated  balance  due  on  any  contract  or  agreement,  or  claim  under 
for  goods,  wares  and  merchandise  sold  and  dehvered,  or  for  work  e^jfistin|  on' an 
and  labor  done,  or  for  specific  articles,  whether  due  by  obligation,  unliquidated 

n     '  .     ,  1-1  1  1  ^1  account,  &c.  — 

note  or  assumpsit,  or  tor  any  judgment  which  may  have  been  granted  nor  for  a  mm 
over  twelve  months  by  a  single  magistrate  and  no  execution  have  under  one  hun- 

,,  ^"^  „  "  P  .        '^  ,.  11'  dred  dollars 

issued  thereon,  or  for  any  forfeiture  or  penalty  incurred  by  virtue  due  by  note,&c. 
of  any  act  of  the  congress  of  the   United  States   or  the  General 
Assembly  of  this  State  ;  nor   for  any  sum  of  less   value  than  one 
hundred  dollars  due  by  bond,  promissory  note,    or  hquidated  ac- 
count signed  by  the  party  to  be  charged  thereby. 

41.  If  any  suit  shall  be  commenced   in   any  of  the  said  county  If  suit  be  com- 

f.  "^  /.  ,  1  1  •  1    11  1      menced  in  the 

courts  tor  any  sum  of  less  value  than  sixty  dohars,  contrary  to  the  county  court 
provisions  of  the  preceding  section,  the  same  shall  be  abated  on  fo' ,*  smn 
the  plea  of  the  defendant ;  and  if  any  suit  shall  be  commenced  in  dollars  due  by 
any  of  said  courts  for  any  sum  of  less  value  than  one  hundred  dol-5^'='=°™'>  J^ '^?7 
lars  due  by  bond,  promissory  note  or  liquidated  account  signed  by  for  a  sum  under 
the  party  to  be  charged  thereby,  the  same   shall  be  dismissed  by  °"^.  ^""'^'■"^^ 

the  court.  note"&c,k    ^ 

42.  If  any  suit  shall  be  commenced,  in  any  of  the  said  superior  ™y  ^^  dismis- 
courts,  contrary  to  the  provisions  of  the  fortieth  section.of  this  act,  j^  commenced 
the  same  shall  be  dismissed  by  the  court ;  and  if  any  suit  shall  be  in  the  superior 
commenced  in  any  of  said  superior  courts  contrary  to  the  true  in- '^""['^  ™"[!'^.'7 

1  •  1  r  T  1     11      /  1  to  the  lortieth 

tent  and  meaning  tfiereot,  or  it  any  person  shall  demand  a  greater  section  the 
sum  than  is  due,  on  purpose  to  evade   the  operation  of  this  act  or  di'sl^issed'^'^ 
otherwise,  and  by  the  verdict  of  a  jury  it  shall  be  ascertained  that -yyj^g^g  jj^g  g^^j^ 
a  less  sum  is  due  to  him  in  principal  and  interest  than,  by  the  pro- is  commenced 
visions  of  the  said  fortieth   section,  said   superior  court  has  juris- [^ejj,°'vfi^ijf 
diction  of,  then  and  in  that  case  it  shall  be  the  duty  of  the  court  to  less  to  "be  due, 
nonsuit  the  plaintiff,  and  he  shall  pay  all  costs.      Provided,  that  if  b^^n^nsuitMl^° 
the  plaintiff,  or  any  other  person  for  him,    will  make  an  affidavit,  unless  he  files 
to  be  filed  in  the  case,  that  the  sum  for  which  his  suit  is  brought  is  ?hat  m*ire1s 
reahy  due,  but  that  for  want  of  proof,  or  that  the  time  limited  for  due. 
the  recovery   of  any  article  bars   a  recovery,    then   and   in  that 
case  such  plaintiff  shall  have  a  verdict   and  judgment  for  what  ap- 
pears  legally  proved,   any  thing  to  the   contrary  notwithstanding. 
Provided,  also,  that  nothing  herein  contained  shall  extend,  or  be  Not  to  extend 
construed  to  extend,  to  suits  on  bonds,  penal  bills  or  other  actions  |j°fJJo^^®^jg°|^.' 

40.  1803,  c.  627,  s.  1.— 1S04,  c.  650  —1820,  c.  lO-lo,  S.  1.— 1793,  c.  392.— 1808,  C.  741. 
—1809,  c.  765.— 1829,  c.  32 
4..  1804,  c.  650.  —1826,  c.  12. 
42.  1793,  c  392.— 1826,  c.  12.— 1808,  c.  741. 


152  COURTS,  COUNTY  AND  SUPERIOR.   [ChAP.  XXXI. 

of  debt  grounded  on  a  penalty,  when  the  balance  due  on  such  bond 
or  penal  bill,  or  other  action  of  debt,  is  not  of  less  value  than  the 
sums   in  the  said  section   mentioned  to  be  limited  for  bringing 
suits  in  said  courts  :  Jlnd  provided  further,   that  no  original  writ  for 
debt  shall  be  issued  by  any  clerk  of  the  said  superior  court,  against 
any  person  residing  out  of  the  county  of  said  clerk  for  any  sum 
under  one  hundred  dollars. 
The  day  when       43.   The  clerk  or  attorney,  issuing  process,  shall  mark  thereon 
to  be  marked    the  day  on  wliicli  the  same  shall  be  issued,  and  the  sheriff  or  other 
thereon  and  the  officer  receiving  the  same  in  order  to  execute,  shall  in  like  manner 
dorse  the  day    mark  on  each  process  the  day  on  which  he  shall  have  received  it  ; 
when  he  re-     and  every  clerk,  attorney,  sheriff  or  other   officer,  neglecting  so 
to  do,  shall  forfeit  and  pay  the  sum  of  one  hundred  dollars,  to  be 
recovered  by  action  of  debt,  in  any  court  of  record  having  cogni- 
zance  thereof,   by  any  person  who   shall  sue   for  the  same,  with 
costs. 
Clerks  to  take       44.   No  Writ  or  Other  leading  process,   returnable  to  any  of  the 
fsTuin^^an'^  wdt  "^^"^^^  ^^  record  within  this  State,  shall  be  granted  or  issued  by  the 
or  other  leading  clerk  or  his  assistant  in  office,  but  under  the  following  regulations 
Pff^^^??' "j-^f '  and  restrictions,   to  wit,  that  the   clerk,   either  by  himself  or  his 
may  be  dismis-  deputy,    before  issumg    any  writ  or  other  leading  process,  take 
^^^'  sufficient  security  of  the  person  so  applying,  conditioned  that  they 

will  prosecute  such  suit  or  suits  they  may  so   commence   and,  in 
case  of  failure  of  such  prosecution,  pay  to   the  defendant  all  such 
costs  and  damages  as  may  be  aw^arded   against  him  by  the   court 
having  cognizance  thereof ;  Provided  nothing  in  this  section  contain- 
Proviso  in  fa-    ed  shall  prevent  persons  from  suing  in  forma  pauperis  as  herein- 
suin°  in^forma ^^^er  provided,  and  when  any  person,  applying  for  a  writ  or  other 
pauperis.         leading  process,  shall  produce  to  the  clerk  an  order  signed  by  a 
judge  of  the  superior  court  allowing  said  apphcant  to   sue  in  for- 
ma pauperis,  it  shall  be  the  duty  of  said   clerk  to   issue  such  writ 
or  leading  process  without  requiring  bond  and  security  :  And  if  any 
writ  or  leading  process  shall  be  issued  without  such  security  being 
given  or  such  order  made,  the  same  shall  be  dismissed  by  the  court 
on  motion  of  the  defendant. 
Clerks  to  enter      45.   When  any  clerk,  either  by  himself  or  his  deputy  in  office, 
names" of  par-    shall  issue  any  writ  or  Other  process,   or   any  declaration  of  eject- 
ties  to  suits  and  men  t  shall  be  returned  into  his  office  and  security  thereon  given  as 
t  eir  sureties,    hereinafter  directed,  he  shall  enter  the  same  in  a  book  to  be  kept 
by  him  for  that  purpose,  together  with  the  names   of  the  plaintiff 
and  defendant  and  the  place  of  their  abode,  the  names   of  the   se- 
curity or  securities  for  obtaining   such  writ  and  the  place   where 
they  live,  and  have  the  same  before  the  court,  where  he  may  so 
officiate  as  clerk,  subject  to  the  examination  of  such  court. 
Penalty  on  46.   If  any  clerk,  either  by  himself  or  his   assistant  in    office, 

in^^process^^*^  shall  issue  any  writ  or  other  leading  process  otherwise  than  as  by  the 
without  taking  two  preceding  sections  directed,  he  shall  pay  to  the  defendant  the 
secuntj.  g^j^^  ^^  ^^^  hundred  dollars,  to  be  recovered  by  action  of  debt  in 

43  1777,  c.  115,  s.  13. 

44.  1737,  c.  27  6,  s.  1.— U  Hen.  7th,  c.  12. 

45.  1787,  c.  276,  s.  2. 

46.  17S7,  c.  27G,  s.  3. 


Chap.  XXXI.]  courts,  county  and  superior.  1 53 

the  court  where  such  offence  shall  have  been  so  committed,  and 
also  shall  forfeit  and  pay  the  sum  of  one  hundred  dollars  for  every 
offence,  so  committed  by  such  clerk  or  his  assistant  in  office,  re- 
coverable in  any  court  of  record  having  cognizance  thereof,  one- 
half  to  the  use  of  the  person  suing  for  the  same,  the  other  half  to 
the  use  of  the  poor  of  the  county. 

47.  Every  poor  person  or  persons,  which  have   or  hereafter  Poor  persons 
shall  have  cause  of  action  or  actions   against  any  other  person  or  ^o^j^^^pj^. 
persons,  either  in  law  or  equity,   shall  have,    at  the  discretion  of'pens. 

any  one  of  the  judges  of  the  supreme  or  superior  courts,  a  writ  or 
writs  at  law  or  writ  of  subpcena  in  equity,  according  to  the  nature 
of  their  causes,  paying  no  costs  on  the  same  nor  giving  any  secu- 
rity therefor  ;  and  the  courts,  to  which  the  said  writs  may  be  re- 
turnable, shall  assign  to  the  said  poor  pei'son  or  persons  learned 
counsel  or  attorneys  to  attend  to  their  cases,  which  counsel  or  at- 
torneys shall  attend  without  fee  or  reward,  and  no  costs  shall 
be  charged  to  such  person  or  persons  by  any  officer  of  the  court 
in  which  such  suit  shall  be  brought. 

48.  It  shall  and  may  be  lawful,  in  all  cases  where  there  may  be  when  writs 
tv/o  or  more  defendants,  for  the  plaintiff  in  any    suit  in  the  superi-  djfilrtmrcoun- 
or  courts,  or  in  the  county   courts   where   one  of  the  defendants  ties  at  the 
resides  in  the  county,  to  issue  writs  directed  to  the  sheriff  or  cor-  turnabiTto  t^he 
oner  of  each  of  the  counties,  where  the  defendants  are  most  likely  county  or  su- 
to  be  found,  noting  on  each  process   that  they  are  issued  in  the  ^''""'^  ^'^^^ ' 
same  suit  ;  and  when  the  same  are  returned  they  shall  be  docketed 

in  the  same  manner  as  if  only  one  had  issued  ;  and  in  case  any  de- 
fendant or  defendants  should  not  be  served  with  such  process,  the 
samic  proceedings  shall  be  had  as  in  cases  of  other  similar  pro- 
cess which  has  not  been  executed. 

49.  Upon  the  return  of  any  writ  of  ejectment  to  any  court  hav-  The  real 
ing  cognizance  thereof,  the  real  plaintiff  in  said  writ,  his  agent  or  fio^^"Qf  pj"j.j^' 
attorney,  at  the  return  court  of  said  writ,  shall  enter  into  bond  with  ment  to  give  a 
the  clerk  of  the  court,  to  which  said  writ  shall  be  returned,  with  |JonX'^"'^°^ 
good  and  sufficient  security  to   prosecute  the  same  with  effect,  or 
otherwise  to  pay  all  such  costs  and   damages   as  shall  be  awarded 

on  failure  thereof. 

50.  In  all  actions  of  ejectment  the  person  or  persons,  who  shall  ^^P""^!^' 

1    r      1  •  •  1        •  1     11  1    •  1  siring  to  be 

make  themselves  deiendants  m  said  suits,  shall  on  doing  the  same,  made  defend- 
either  by  themselves,  their  agent  or  attorney,  enter  into  bond  with ''^"^^ '"  ^J^*^^: 

•'.  '.^  i-  •         r      •  nient  must  cfive 

good  and  sufficient  security  to  answer  such  writ  or  writs  of  eject-  a  bail  bond.' 
ment  in  the  court  or  courts  to  which  they  may  be  made  returna- 
ble, and  abide  by  the  determination  of  the  same,  which  defendant 
or  defendants  shall  be  under  the  same  rules  and  regulations  and 
liable  to  the  same  judicial  proceedings,  as  to  all  costs  and  dama- 
ges that  may  be  awarded  against  him  or  them,  as  principal  and 
bail  are  subjected  to  in  other  civil  actions  of  law  in  said  court. 

51.  If  the  lessor  of  the  plaintiff  in  any   action  of  ejectment,  Jj^^fj^gj^^P^g"^ 

makes  an  affi- 
47.  11  Hen.  7,  c.  12. 
18.   I7sy,  c.  314,  s.  1  and  2.— 1831,  c.  14,  s.  2. 

49.  1804,  c.  058,  s.  1. 

50.  1S04,  c.  65JS,  s.  2. 

51.  1823,  c.  llS-1. 

VOL.  I.  20 


154  COURTS,    COUNTY    AND   SUPERIOR.   [ChAP.  XXXI. 

davit  that  the    his   agent   or  attorney,  or  if  any  one  of  the  several  lessors,   or 
fefed into  the    the   agent  or  attorney  of    any   one  lessor,   shall,  at    the  return 
land  as  his  ten- term  of  the  declaration  in  ejectment,  file  his  or  her  affidavit  that 
fe'ndant  shall ^' t^^^  tenant  in  possession  of  the  premises  sued  for,  and  to  whom  the 
not  plead  until  notice  of  the  said  suit  is  directed  in  the  process  issued,  entered 
forfhrcosts      i"to  said  premises  as  his  or  her  tenant  or  as  tenant  of  the  person, 
and  damages,    as  whose  agent  or  attorney  said  affiant  deposes,  that  said  tenant's 
term  therein  has  expired  and  that  said  tenant  refuses  to  surrender 
the  possession  of  said  premises  to  said  lessors  or  any  one  of  them, 
said  person  in  possession   or   any  other  person  made   defendant 
shall  not  be  entitled  to  plead  to   said  suit,   and  the  lessors  of  the 
plaintiff  shall  be  entitled  to  judgment  final  against  the  casual  ejector 
at  the  said  return  term,   unless   the   said  person  in  possession  or 
,jj^  other  person  applying  to  be  made  defendant  shall  enter  into  bond, 
in  such  sum  as  the  court  shall   direct,  with  surety  to  be  approved 
by  said  court,  with  condition  that  said  defendant  or  defendants  shall 
pay  the  said  lessor  or  lessors  all  such  costs  and  damages  as  shall  be 
What  facts  in   recovered  in  said  suit  ;  and  it  shall  be  the  duty  of  the  jury  in  such 
jury  ar?to find,  cases,  where  issue  may  be  joined,  to  find  in  their  verdict  whether 
the  defendant  entered  into  possession  of  the  premises  as  the  tenant 
of  the  lessors  or  of  which  of  them,  and  whether  he  refused  to  sur- 
If  they  find      render  the  premises  after  his  term  therein  had  expired,  and,  if  such 
for  the  plaintiff  f5u{Jing  shall  be  in  favor  of  the  lessors  of  the  plaintiff,  such  jury 
sess  damages    shall  assess  the  damages  to  which  the  lessors  of  the  plaintiff  shall 
%  the  occupa-  h@  entitled,  including  the  value  of  the  occupation  of  the  premises 
'    "'  sued  for  from  the  expiration  of  said  tenant's  term  to  the  rendition 

of  the  verdict,  and  dam.ages  for  waste  and  trespass  during  the  time 
of  said  holding   over,  and  the  court  shall  render  judgment  against 
the  defendant  and  his  securities  upon   their  said  bond,  to  be  dis- 
charged by  the  payment  of  the  damages  assessed  as  aforesaid  and 
the  payment  of  all  costs,  judgment  upon  which  verdict  shall  bar 
Defendant  may  the  action  for  the    mesne  profits  or  for  the  trespass  by  any  of  the 
rebut  plaintiff";s  lessors  in  said  action.     Provided  nevertheless,  that  it  shall  be  com- 
own'^&c.  ^    ^^petent  for  the  defendant  or  tenant  in  possession  to  rebut,  by  his  or 
her  affidavit,  the  facts  set  forth  in  the  affidavit  offered  on  the  part 
of  the  lessor  of  the  plaintiff,    and  the   court  in  such  cases  shall 
decide  thereon  and   may  in   its   discretion  allow  the  affidavits  on 
either  side  to  be  corroborated  by  other  affidavits  or  evidence. 
.  52.   Whenever  any  plaintiff  in  ejectment  shall  fail  to  give  his 

ejectment  does  bond  for  prosecuting  his  suit  as  before  directed,  the  court  shall  on 
not  give  secu-  niotion  dismiss  the  suit ;  and  whenever  any  person  or  persons  may 
be  dismissed,  be  desirous  of  becoming  defendant  or  defendants  in  any  suit  in 
Defendant  to  ejectment,  they  shall  give  bond  as  before  directed  or  be  in  custody 
fn^custody  be-  of  the  sheriff,  before  they  or  their   attorney  shall  be  permitted  to 

fore  pleading,    plead. 

Writs  and  53.  All  writs  and  other  civil  process,  except  subpoenas  returna- 

cess,'^whento°' hie  immediately,  shall  be  returned  the  first   day  of  the   term  to 

be  returned,      which  the  same  shall  be  returnable,  and  shall  be  executed  at  least 

ten  days  before  the  beginning  of  the  term,  when  returnable  to  a  su- 

52.  1804,  c.  658,  s,  5. 

53.  1777,0.  115,  S.  Hand  67. 


Chap.  XXXL]  courts,  county  and  superior.  155 

perior  court,  and  at  least  five  days  before  the  beginning  of  the  terra, 
when  returnable  to  the  county  court  ;  and  if  any  original  or  mesne 
process  shall  be  taken  out,  within  the  time  above  specified,  before 
the  beginning  of  any  of  the  terms  of  said  courts  from  which  they 
respectively  issued,  such  process  shall  be  made  returnable  to  the  How  ion?  be- 
term  next  succeedinsf  that  which  shall  commence  within  the  times  ^°^^  ^""l"^  ^°  ^^ 

O  _  CXBCUtGCl. 

above  specified  after  taking  out  such  process,  and  not  otherwise  ; 
and  all  process,  made  returnable  at  any  other  term,  or  executed  at 
any  other  time  or  in  any  other  manner,  than  is  by  this  act  directed, 
shall  be  adjudged  void  upon  the  plea  of  the  defendant. 

54.  When  any  sheriff  shall  return  that  he  hath  taken  the  body  ^^urng^thafhe 
of  any  defendant  and  committed  him  to  the  prison  of  his  county,  has  defendant 
which  is  hereby  declared  to  be  the  proper  place  for  such  commit-  '"aint'ff  shau'^^ 
ment,  the  plaintiff  may  enter  the  defendant's   appearance   and  he  proceed, 
shall  be  at  hberty  to  plead,  as  if  such  appearance  had  been  entered 

by  himself,  and  the  plaintiff  may  proceed  as  in  other  cases  as  in 
this  act  directed  ;  nevertheless  the  defendant  shall  not  be  discharg- 
ed out  of  custody  but  by  putting  in  bail  or  by  rule  of  court. 

55.  No  female  whatever  shall  be  taken  or  imprisoned  for  debt,  ^^o  female  shall 

56.  When  the  sheriff  shall  make   return  in  any  civil  action  that  imprisoned  for 
the  defendant  is  not  to  be  found   in   his  county,  the  plaintiff  may,  <^^bt- 

at  his  election,  sue  out  an  attachment  against  the  estate  of  such  de-  ^S.^  ^^^  ^Iaui- 
fendant,  or  an  alias,  or  pluries  capias  until  he  be  arrested,  return- ceed  when  the 
able  in  the  same  manner  as  original  process  ;  and  if  the  sheriff  shall  ^'j*^"^  "l?^"™^ 
return  any  goods  by  him  attached,  the  plaintiff  shall  file  his  declar-  ant  is  not  to  be 
ation  according  to  the  rules  of  the  court,  and  if  the  defendant  shall  found, 
fail  to  appear  and  plead  within  the  time  herein  directed,  the  plain- 
tiff shall  be  entitled,  if  in  an  action  of  debt,  to  final  judgment,  and, 
if  in  an  action  on  the  case,  to  an   interlocutory  judgment,  and  in 
consequence  thereof,  may  execute  a  writ  of  inquiry  the  next  suc- 
ceeding term  ;  and  the  goods  so  attached,  if  not  replevied  or  sold 
according  to  the  rules  prescribed  for  goods  taken  on  original  at- 
tachment, shall  remain  in  the  custody  of  the  sheriff  until  final  judg-  If  goods  be 
ment,  and  then  be  disposed  of  in  the  same  manner  as  goods  taken  judicial  attach- 
in  execution  on  a  writ  o[  fieri  facias,  and  if  the  iudgment  shall  not '"*^"t' ^"d  be 

,  t/         */  '  ^     ^       %f      c/  _       not  rGplcvied 

be  satisfied  by  the  goods  attached,  the  plaintiff  may  have  execution  they  may  be ' 
for  the  residue.  ?oJd  on  final 

57.  And  when  any  defendant,  in  a  writ  sued  out  of  a  superior  when  a  sheriff 
court,  or  out  of  a  county  court  where  there  is  more  than  one  de-  returns  that 
fendant  and  one  of  the  defendants  resides  in  such  county,  shall  be  Is  not'an^fn^hab- 
a  known  inhabitant  of  any  other  county  than  that  of  the  sheriff,  to  itant  of  his, 
whom  such  process  shall  be  directed,  the  sheriff  shall  return  the  I^o^nty^^n°'^" 
truth  of  the  case,  and  thereupon  an  alias  shall  issue  directed  to  the  alias  shall  is- 
sherifF  of  the  county  where  such  defendant  resides,  and  variance  tywhere'^t'lKr'^" 
of  the  addition  of  the  place  of  abode  of  the  defendant  shall  not  be  defendant  re- 
deemed error  or  matter  of  abatement.  ^^,.^^' 

58.  It  shall  not  be  lawful  for  any  sheriff  or  other  officer  to  exe- ^hi'tfi^  t^^e 

54.  1777,  c.  115,  s,  18. 

55.  1823,  c.  1209  amended. 

56.  1777,  c.  115,  s.  23  and  71. 

57.  1777,  C.  118,  S.  5. 

58.  1777,  c.  118,  s.  6. 


156  COURTS,  COUNTY  AND  SUPERIOR.  [ChAP.  XXXI. 

sheriff  shall      cute  any  writ  or  other  process,  upon  a  Sunday,  or  upon  any  per- 
civif  process.    ^^^  attending  his  duty  at  a  muster  of  the  mihtia,  or  at  any  election 
of  members  of  the  General  Assembly,  or  of  member  of  congress, 
or  electors  of  president  and  vice-president,  or  of  any  officer  of  this 
State,  or  upon  any  person  summoned  to  attend  as  witness  or  juror  ; 
and  all  such  services  of  process  are  hereby  declared  illegal  and 
void,  unless  the  same  be  issued  against  any  person  or  persons  for 
treason,  felony,  riot,  rescous,  breach  of  the  peace,  or  upon  escape 
out  of  prison  or  custody,  and  such  process  shall  and  may  be  exe- 
cuted at  any  time  or  place. 
If  there  be  in       59,   If  at  any  time  there  should  be  no  proper  officer  in  any 
proper  office"  to  county  in  this    State,  to  which  any  process,   original,  mesne  or 
execute  pro-      final,  of  any  coui't  of  record  shall  or  ought  to  be  directed,  who  can 
fuse'to  do  so,    lawfully  scrve  or  execute  the  said  process,  or  if  there  be  such 
any  judge  may  officer,  who  shall  rcfuse  or  neglect  to  execute  the  same,  any  judge 
sheriff  of  an     of  the  superior  courts  of  law  and  equity,  or  any  judge  of  the  supreme 
ad  joining  coun- court,  the  Same  being;  made  to  appear  to  him,  shall  authorize  and 

tv  to  f  XGCUtG  A    JL 

the  same.  Command  the  sheriff  of  any  county  adjoining  the  one,  to  which  the 
said  process  shall  or  ought  to  be  directed,  to  serve  and  execute 
said  process,  who  shall  have  the  same  powers  and  be  subject  to 
the  same  rules  and  receive  the  same  fees,  as  the  sheriff  of  the  county 
should  or  might  have  and  receive. 

Additional  QQ.   Whenever  any  process  shall  be  directed  to  any  sheriff  of 

compensation  !•••  i  i  ri  -I'l-i 

to  sheriffs  for  an  adjomnig  county,  to  be  served  out  01  the  county,  m  which  said 

executingpro-  sheriff  shall  reside,  such  sheriff  shall  for  such  service  have  and  re- 
cess out  oi  their     .  1      1      /■         11         11-11         1  /•     1 
county.           ceive  not  only  the  tees  allowed  him  by  law,   but  as  lurther  com- 
pensation shall  be  allowed  five  cents   for  every  mile  he  may  be 
compelled  to  travel  in  going  to  and  returning  from  serving  the  said 
process  :   Provided,  nevertheless,   that   whenever  any  writ  of  jien 
facias  amounting  to  five  hundred  dollars  or  upwards,  shall  be  di- 
rected to  any  sheriff  of  an  adjoining  county,  under  the  provisions 
of  this  act,  then  and  in  that  case  such  sheriff  shall  not  be  allowed 
mileage,  but  the  commissions,  to  which  such  sheriff  shall  be  enti- 
tled, shall  be  deemed  a  sufficient  compensation  for  serving  said 
fieri  facias. 
Sheriff  failing       61.   Every  sheriff  or  coroner,  who  shall  fail  duly  to  execute  and 
returrprocess  ^'stum  all  process  to  him  directed,  shall  be  subject  to  a  penalty  of 
to  forfeit  one     one  hundred  dollars  for  each   neglect,  to    be    paid   to   the    party 
lars'^and'be'al-S^'^^^®*^'  V  Order  of  the  court,  upon  motion   and  proof  that    the 
so  liable  to  in-  process  was  delivered  to  him  twenty  days  before  the  sitting  of  the 
court,  to  which  the  same  is  returnable,  unless  such  sheriff  or  cor- 
oner can  show  sufficient  cause  to  the  court  for  his  failure    at  the 
court  next  succeeding  such  order  ;  and  said  sheriff  or  coroner,  for 
every  such  neglect  duly  to  execute  and  return  process  delivered 
to  him  as  aforesaid,  shall  be  further  subject  to  indictment  in   any 
court  of  record,  and  on  conviction  shall  be  fined  or  imprisoned  at 
the  discretion  of  the  court. 

59.  1821,  c.  1030—1822,  c.  1132,  S.  1.— 1779,  c.  156,  s.  3. 

60.  1822,  c  1132,  s.  2. 
(51.  1821,  c.  1110. 


dictment. 


Chap.  XXXL]  courts,  county  and  superior.  157 


RULES     OF     COURT. 

62.   The  following  rules  and  methods  shall  be  observed  in  said  l^^les  of  court. 
courts,  to  wit  :  The  plaintiff,  by  himself  or  his  attorney,  shall  file  his  Pg^fi\^g'?^';/V'' 
declaration  in    the  clerk's  office,  on  or  before  the  third  day  of  the  the  three  first 
term  to  which  his  suit  shall  be  broueht  ;  otherwise  the  suit  shall  be  '^^^'^  °^  ^.^^ 

o       ^  term  or  triG 

dismissed  by  the  court  at  the  costs  of  the  plaintiff.  suit  may  be 

The  defendant  shall  appear  and  plead  or  demur  at  the  same  term  dis'^ssed. 
to  which  the  writ  shall  be  returnable  ;  otherwise  the  plaintiff  may  appear  and  ° 
have  judgment  by  default,  which  in  actions  of  debt  shall  be  final,  plead  or  demur 
unless  where  damages  are  suggested  on  the  roll,  and  in  that  case  ^erm.^  ^^"'^ 
and  in  all  others  not  specially  provided  for,  where  the    recovery 
shall  be  in  damages,  a  writ  of  inquiry  shall  be  executed    at   the 
next  succeeding  term.     Provided,  that  where   the    nature  of  the  When  special 
action  requires  special  pleading,  the  time  for  pleading  may  be  en- ^J^'Jg^"^ jj^e '^®" 
larged.      And  provided  further,  that  where  a  plaintiff  shall    obtain  time  may  be 
judgment  final,  at  the  first  term  to   which  the    process  shall  be  re- !^  ^"^""l .' 
turned,  in  an  action  of  debt,  it   shall  be  lawful  for  him  to  execute  as  to  the  value 
his  inquiry  the  same  term,  as  to  the  value  of  any  foreign  currency  °^  foreign  cur- 

1       •>,.,,  '.  ,       ,  ,  •'  °  •'  rency  to  be  ex- 

or  money  lor  which  the  suit  may  be  brought.  ecuted  at  the 

Where  defendant   pleads    specially,  the  plaintiff  shall  reply  or  ^^'^?  ^"'"^ '^^^^^ 
demur  at  the  same  term  at  which  the  plea  or  demurrer  is  filed,  or  pij^^j^^j^  ^^  j.^. 
a  non  pros,  may  be  entered  by  the  defendants  ;  and  if  the  plaintiffply  ordemurat 
replies  and  in  his  replication  tenders  an  issue,  the  defendant  shall  l^t^^^'f  ''^™^' 

•     .        .  •  ■        ■  CJtllGr  DIGEIS  to 

join  issue  or  demur  at  the   same  term,  otherwise  the  plaintiff  may  be  filed  and  is- 
have  judgment  ;  and  where  the  defendant  reioins  to  the  plaintiff's  ®"®?^  "^'^'^'^  "P 

.  .  •^  ■*■  3,1  t[16  S3.1116 

replication,  he  shall  file  his  rejoinder  at  the  same   term,  or  judg-term. 
ment  shall  go  against  him,  unless  the  time  for  pleading  shall  be  en- 
larged as  aforesaid. 

When  a  special  verdict  shall  be  found,  a  case  agreed,  a  demurrer  Time  may  be 

/.,     1  1  -n      r  •  1  -1  IT-  allowed  to  ar- 

med, or  a  bill  01  exceptions  to  the  evidence    tendered,  time  may  ^ue  demurrer, 

be  allowed  upon  motion  of  either  party  to  the  next   term  to  arsue  ^l  of  excep- 

,  ^  1        ./  o       tions,  &c.    . 

the  same. 

In  any  matter  or  suit  depending  in   any  of  said    courts,  either  Parties  may  en- 
plaintiff  or  defendant  may  enter  his  own  pleas  and  defend  his  own  ^*;''  ^^^^"^  "^'^ 
cause  ;  and  no  instrument  oi  writing,  which  contains  the  substance, 
shall  be  lost  or  destroyed  for  want  of  form. 

For  the  better  preservation  of  the  records  of  the  courts,  when  Clerk  to  enter 
any  cause  is  finally  determined,  the  clerk  of  each  court  shall  enter  courtTn  a^wdl 
all  the  proceedings  therein  in  a  book  well  bound,  and  an  entire  and  bound  book. 
perfect  record  make  thereof. 

■^       .  1,   .  1     11  1       />  •     t  Jm'Y  causes  to 

All  jury  causes  shall  be  first  tried.  be  first  tried. 

All  motions    in  arrest  of  judgment  shall  be  argued    within   the  Motions  in  ar- 
three  last  days  of  the  term,  in  which   the  issue  shall  be  tried,  the  ^g|^^°jg'',^g^|j.. 
defendant's  attorney  first  serving  the  plaintiff's  attorney  with  a  copy  gued  when. 
of  the  reasons  in  arrest  of  judgment,  unless  upon  sufficient  cause 
shown  and  approved  of  by  the  court  further  time  shall  be  allowed. 

Arguments  on    writs    of  error,  special   verdicts,  cases  agreed, 

62.  1777,  c.  115,  s.  24,  34  and  73.— 1779,  c.  138,  s.  2.— 1735,  c.  233,  s.  3. —1786,  c. 
253,  s.  2,  3  and  6.-1796,  c.  451.-1793,  c.  496,  s.  1  and  2.-4  Anne,  c.  16,  s.  4. 


15S  COURTS,  COUNTY  AND  SUPERIOR.   [ChAP.  XXXI. 

Argument        demuiTers,  petitions  for  legacies  and   distribution  of  intestates'  es- 

uf  brargued!"^  tates,  shall  be  heard  upon  the  four  last  days  of  the  term. 

No  plea  in  No  plea  in  abatement  shall  be  received  in  any  of  the  said  courts, 

bere^ceived,"    unless  the  party  offering  the  same  shall  by  affidavit   or   otherwise 

but  on  affidavit  prove  the  truth  of  such  plea. 

w^en°plea  in        Where  a  plea  in  abatement  shall  be  pleaded  and  upon  argument 

abatement  is     the  same  shall   be  adjudged  insufficient,  the  plaintiff  shall  recover 

pldnt^iF  shall   against  the  defendant  full  costs  to  the  time  of  overruling  such  plea, 

recover  costs,    including  the  costs  of  court  ;  and  the  plaintiff  in  replevin  or  de- 

as*ma^y"be^  ^^^  fcudant  in  any  other  action  may  plead  as  many  several  matters  as 

thought  neces-  may  be  necessary  for  his  defence,  so  that  he  may  not  be  permitted 

pleaded?^  ^     to  plead  and  demur  to  the  whole. 

A  plea  since  The  entering  a  plea  since  the   last  continuance  of  a  suit  at  law 

the  last  coiitm-  gj^gj]  j^^  ^^  p^gg  -whatever  be   construed  a  relinquishment  of  any 

nance,  not  to  .  i      i  ,  i     i,  •'•       i       i-i        /• 

be  a  waiver  of  plea  previously  entered,    but  the  same    shall  retam  the  like  force 
former  pleas.    ^^^  operation,  which  it  would  have  had  if  such  plea  since  the  last 

continuance  had  not  been  entered. 
All  issues  to  be  ^j]  igg^es,  whether  general  or  special,  shall  be  heard  and  tried 
succeeding  the  next  succeeding  term  after  the  issue  shall  be  made  up,  unless 
term  after  be-  \yy  consent  of  parties  or  on  sufficient  cause  shown  to  the  court  by 
No  cause  to  be  affidavit  filed  such  cause  should  be  continued  ;  nor  shall  any  cause 
contmued  but    jjg  continued  at  any  term  but  by  consent  or   on  affidavit  showing 

by  consent  ot  .  j  j  o 

parties  or  on     Sufficient   CauSC. 

affidavit.  Whenever   it  shall   be  the  opinion  of  the   court  that  the  party 

Court  may  or-  .  .  ,    i,  ^ ,      •      •        •  i  r    ^        "^ 

der  a  party  con- praying  a  Continuance  shall  not  obtain  it  without  payment  ot  costs, 
tinuinga  ^j-^g  ^yhole  of  thcse  costs  shall  be  paid  before  the  continuance  is 

cause  to  pay  i  i     i  •  i  in  i  ■  i     i 

costs.  granted,  and  the  party  paying  such   costs  shall  not  be  entitled  to 

recover  them,  although  the  judgment  of  the  court  shall  finally  be 
in  his  favor. 
Not  more  than       It  shall  not  be  lawful  for  either  plaintiff  or  defendant  to  employ, 
speak  in"anV°  ^'^^  ^""y   matter  or  suit,  more  than   one  attorney  to  speak  in  such 
cause.  matter  or  suit  in  court,  and  the  courts  in  this    State  are  hereby  di- 

rected not  to  suffer  more  than   one  attorney,   as  aforesaid,   in  any 
matters  whatever,   to  plead  for  either  plaintiff  or  defendant  to  any 
suit,  under  penalty  of  a  violation  of  this  section. 
Every  attorney     Every  attorney  in  any  of  the  courts  of  law  and   equity  in  this 
appearing  in     State,  wlio  shall  claim  to   enter  an  appearance   for  any   person  or 

any  cause  to  '      .  r       •  ^  i     n  i     •  •       i  i 

produce  and      persous  HI  any  ot  said  courts,  shall,  upon  being  required  so  to  do, 
hie  a  power  of  produce   and  file  in  the   clerk's  office  of  the  court,  in  which  he 

attorney  ii  re-    ^  '  . 

quired.  shall  SO  claiHi  to  enter  an  appearance,  a  power  or  authority  to  that 

effect  signed  by  the  person  or  persons  or  some  one  of  them  for 
whom  he  is  about  to  enter  an  appearance,  or  by  some  person  duly 
authorized  in  that  behalf,   provided  that  when  any  attorney  in  any 
When  it  is       of  said  courts  shall  claim  to  enter  an  appearance  by  virtue  of  alet- 
thrattm-nev'to^^'^  *°  ^™  directed,  whether  such  letter  purport  a  general  or  par- 
retain  the  pow- ticular  employment,  and  it  shall  be  necessary  for  said  attorney  to 
be  done.'''        retain  said  letter  in  his  own  possession,   he  shall,    on  the  produc- 
tion of  said  letter  setting  forth  such  employment,  be  allow^ed  to  enter 
his  appearance,  and  it  shall  be  the  duty  of  the  clerk  to  note  to  that 
effect  upon  the  docket. 
enter  an™p^  '°     ^°  attorney  shall  be  permitted  to  enter  an  appearance  for  his 


Chap.  XXXI.]  courts,  corxxY  and  superior,  1o9 

client  or  clients,   without  producing  to  the  court   when  required  pearaace,  nnul 
such  power  or  letter,  and  upon  his  failure    to  do  so,  the  sarne  pro-  p^^,^^^ 
ceedinss  shall  be  had  thereon  as  in  cases  where  no  appearance  is  reqioired. 
entered. 

63.  In  all  actions  brought  in  anv  of  said  courts  on  anv  bond  or  ^  ^H°°^ /^'^ 
bonds,  or  on  any  penal  sum  for  the  non-pertonnance  of  any  cove-  &£.  plaintiff 
nants  or  agreements  in  any  indenture,   deed  or  writing   contained,  ^^-^^^s^ 
the  plaintilf  or  plaintiffs  may  assign  as  many  breaches  as  he  or  they  as  Le  thinks  fit. 
shall  think  fit,  and  the  jury  on  the  trial  of  such  action  or  actions 
shall  and  may  assess,   not  only  such  damasces   and   costs  as  have 
heretofore  been  usually  done  in  such  cases,   but  also  damages  for 
such  of  the  said  breaches,  so  to  be  assigned,  as  the  plaintiff  upon 
upon  the  trial  of  the  issues  shall  prove  to  have  been  broken,  and 
the  like  judgment  shall  be  entered  on  such  verdict   as  heretofore 
hath  been  usually  done  in  such  like  actions  ;  and  if  judgment  shall 
be   given    for  the  plaintiff  on   a  demurrer,  or  by  confession    OJ^  if  judgment  he 
nihil  cicit.,  the  plaintiff   upon  the  record    may  suggest  as  many  giTen for  the 
breaches  of  the  covenants  and  agreements  as  he  may  think  fit,  ^nn-er.  &c.  hr 
upon  which  a  jury  shall  be  empanelled  to  inquire  of    the  truth  may  sn^rest  as 
of  any  one  of   those  breaches  and  to  assess  the   damajes,  that  ^^le^roil  &s 
the  plaintiff  shall  have  sustained  thereby,  which  inquiry  by  the  iie  thinks  fit. 
jury  shall  be    made    as  in  other  cases  of  judsment  by  default  ; 
and  in  case  the   defendant  or    defendants,    after  such    judzment  ^w^i^  a    . 

•  jin  -l"  Defendant  may 

entered  and  beiore  execution  executed,  shall  pay  mto  the  court,  pay  dairages 
where  the  action  shall  be  brouaht,  to  the  use  of  the  plaintiff  or  and  costs  mto 

,    .      .  ^  ,.  ,.  -  1      •    •  71  co'iTt.  and  u  so 

plamtiffs  or  his  or  their  executors  or  administrators,  such  dam-  no  execution 
ages   so  to  be  assessed  by  reason  of  all  or  any  of  the  breaches  ^^'^  ^^^• 
of  such  covenant,  together  with  the  costs  of  suit,  a  stay  of  exe- 
cution of  said  judgment  shall  be  entered  on  record  ;  or  if  by  rea- 
son of  any  execution  executed,  the  plaintiff  or  plaintiffs  or  his  or 
their  executors  or  administrators  shall  be  fuHy  paid  or  satisfied  all 
such  damages  so  to  be  assessed  with  his  or  their  costs  of  suit,  and 
all  reasonable  charges  and  expenses  for  executing  the  said  execu- 
tion, the  body,  lands  or  good^  of  the  defendant  shall  be  thereupon 
forthwith  discharged  from  the  said  execution,  which  shall  likewise 
be  entered  upon  the  record,  but  notwithstanding,  in  each  case  such  jadsment  shall 
judgment  shall  remain,  continue  and  be  as  a  farther  security  to  an- r°^'^°°  ^^ 
swer  to  the  plaintiff  or  plaintiffs,  and  his  or  their  executors  and  ad- for  fiirther  ' 
rainistrators,  such  damages  as  shall  or  may  be  sustained  for  further  ^'*^'^^-- 
breach  of  any  covenants  in  the  same   indenture,   deed  or   writics 
contained,  upon  which  the  plaintiff  or  plaintiffs  mav   have  a  scire 
facias  upon  the  said  judgment,  against  the  defendant  or  against  his 
heirs  or  his  executors  or  administrators,  susgesting  other  breaches 
of  the  said  covenants  or  agreements,  and  to  summon  him  or  them 
respectively   to  shew   cause  why   execution   shall  not  be  had  or 
awai'ded  upon  the  said  judgment,  upon  which  there  shall  be  the 
like  proceedings,  as  were  in  the  action  of  debt  upon  the  said  bond 
or  obligation,  for  assessing  of  daraases  upon  trial  of  issues  joined 
upon  such  breaches  or  inquiry  thereof  upon  a  writ  to  be  award- 
ed in  manner  as  atbresaid,  and  upon  payment  or  satisfaction  in 

63.  8  and  9  Will.  3.  c.  11.  s.  3. 


160  COURTS,  COUNTY  AND  SUPERIOR.  [ChAP.  XXXI. 

manner  as  aforesaid  of  such  future  damages,  costs  and   charges 

as  aforesaid,    all  further  proceedings  on   the  said   judgment  are 

again   to  be  stayed   and  so  toties  quoties,  and  the  defendant,  his 

body,  lands  and  goods  shall   be  discharged  out  of  execution  as 

aforesaid. 

Rules  for  tak-       64.   In  taking  the   testimony  of  witnesses   in  all  causes  which 

and  .summon^   may  be  depending  in  the  superior  or  county  courts,  the  following 

ing  witnesses,  rules  shall  be  observed  and  put  in  practice,  to  wit : 

Subpoena  for         In  all  suits   wlicrc  witnesscs  are  to  appear  at  any  of  the   said 

to^issue!^  ^°^  courts,  the  clerk  at  the  request  of  the  party  shall  issue  a  subpcena, 

directed  to  the   sheriff  or  other  officer  of  the  county  where  such 

witness  or  witnesses  are  said  to   reside,  mentioning  the  time  and 

place  for  his,  her  or  their  appearance,  the  names  of  the  parties  to 

the  suit,  wherein  the  testimony  is  to   be   given,  and  the  party  at 

whose  instance  such  witness  or  witnesses  is  or  are  summoned. 

Subpoena  re-         Every  subpoena  made  returnable   immediately,  shall  be  issued 

turnable  imme-  only  in  term  time,  and  shall  be  personally  served  on  the  witness  or 

diately,  when         .  •'  .i         •  j 

to  issue.  Witnesses  therem  named. 

How  subpoena      A  copy  of  every  subpcena  issued  by  the  clerks  in  the  vacation, 
maybe  served,  jjj  cagg  j}jg  witness  or  witnesses  therein  named  is  or  are  not  to  be 
found,   may  be  left  at  their  usual  place  of  residence  ;  and  such 
copy,  certified  by  the  sheriff  or  other  officer,  left  as  aforesaid,  shall 
be  deemed  a  legal  summons,  and  the  person   or  persons   therein 
named  shall  be  bound  to  appear  in  the  same  manner  as  if  person- 
ally summoned. 
Witnesses  to         65.   Every  witness,  being   summoned  to   appear  in  any  of  the 
ter^'^'to  te"^      Said  courts,  in  manner  as  herein   before  directed,  either  in  a  civil 
till  discharged,  suit  or  in  a  criminal  prosecution  or  plea  of  the  State,  shall  appear 
accordingly  and  continue  to   attend  from  time  to  time  until   dis- 
charged, when  summoned  in  a  civil  suit,  by  the  court  or  the  party 
at  whose  instance  such  witness  shall  be  summoned,  or  when  sum- 
moned in  a  criminal  prosecution  or  plea  of  the  State,  until   dis- 
charged by  the  court,  the  prosecuting  officer,  or  the  party  at  whose 
instance  he  was  summoned  ;  and  in  default  thereof  shall  forfeit  and 
pay,  to  the  party  at  whose  instance  the  subpoena  issued,  the  sum 
Penalty  on  wit- of  forty  dollars,  and  shall  be  further  liable  to   the  action  of  said 
nesses  for  non-  pa^-ty  for  the  full  damages  which  may  be  sustained  for  the  want  of 

a.ltenu3.n.cc.         r       j  _       o  ^ 

such  witness's  testimony,  who  shall  recover  the  same  by  scire 
facias  with  costs  ;  or,  if  summoned  in  a  criminal  prosecution  or 
plea  of  the  State,  shall  forfeit  and  pay  the  sum  of  eighty  dohars  for 
the  use  of  the  State,  unless,  upon  notice  issued  and  made  known, 
sufficient  cause  be  shown  at  the  next  court  for  such  failure,  in 
which  case  his  forfeiture  shall  be  remitted  and  he  shall  be  dis- 
charged from  all  costs. 
Witnesses  66.   Provided  always,  that  if  it  shall  so  happen  that  the  civil  suit 

tied  to  pay\f  depending  shall,  in  the  vacation,  be  accommodated  and  settled 
they  attend  between  the  parties,  and  the  party  at  whose  instance  such  witness 
settledTn^vaca-  was  summoned   should  neglect  or  omit  to   discharge  him   or  her 

tion,  unless  vo- 

tifi^d.  64.  1777,  c.  115,  s.  .36. 

or>.  1777,  c.  115,  s.  37  and  43.— 1301,  c.  591. 

66.  1777,  c.  115,  s.  38. 


Chap.  XXXL]  courts,  county  and  superior.  161 

from  further  attendance,  and  he  or  she  for  want  of  such  discharge 

should   attend  at  the  next  term,  then  and  in  that  case  the  witness, 

upon  oath  made  of  the  facts,  shall  be  entitled  to  a  ticket  from  the 

clerk  in   the  same  manner  as   other  witnesses,  and  shall  recover 

from  the  party,  at  whose  instance  he  was  summoned,  the   same 

allowance  which  by  this  act  is   given  to  witnesses  for  their  attend- 

ance  at  said  court  with  costs  :   Provided,  also,  that  if  any  witness  Ji  faYsehTto '^' 

shall  swear  falsely  in   order  to  obtain  a  ticket,  he  shall  upon  con-  obtain  a  ticket, 

viction  be  adjudged  guilty  of  perjury  and  suffer  as  in  cases  of  cor-  ^^^^^  "^  P^'^'" 

rupt  and  wilful  perjury. 

67.  Jlnd  provided  further,  that  if,  at  the  next  succeeding  term  How  witnesses 

f..,  -Ta:-*  1,1  1,^1  *hall  be  exon- 

oi  said  court,   sumcient  cause   be  shown  by  the  person   so  sum-  erated  from 
moned  and  failing  to  appear  of  his  or  her  incapacity  to  attend  at  forfeiture  and 
the  time  and  place  mentioned  in  the  subpoena,   then  no  forfeiture  attendance.'^' 
or  penalty  shall  be   incurred  by  such   failure,  and  said  witness  so 
exonerated   shall  not  be  subject  to  any   costs  which  may   have 
accrued  ;  but,  if  on  notice  given  by  the  court,  sufficient  cause  be 
not  shewn  at  the  next  succeeding  term  after  such  failure,  it  shall 
and  may  be  lawful  for  such  court,  on  motion,  to  grant  judgment 
and  award  execution,  for  the  forfeiture  before  mentioned,  against  the 
person  so  summoned  and  faihng  to  appear  as  aforesaid. 

63.  When  any  person,  who  may  be  a  witness  in  any  civil  cause  In  what  cases 
in  any  of  the  said  courts,  shall  reside  out  of  the  State,  or  shall,  by  J-t'^ess^eTmay 
reason  of  age,   bodily  infirmity  or  other  cause,   be   incapable  of  be  taken, 
attending  to  give  his  testimony  in  court,  or  shall  be  in  a  dangerous 
state  of  health,  or  about  to  leave  the  State,  or  be  a  prisoner  con- 
fined in  jail,  oath  thereof  being  made,  or  the  truth  of  the  matter 
otherwise  appeai'ing,    or   when   either   party  to  a  civil   suit   shall 
require  the  testimony  of  the  governor,  the  secretary  of  state,  the 
treasurer,  comptroller,   or  any  judge  of  the  superior  or   supreme 
courts,  or  of  the  attorney  general,  or  any  of  the  solicitors  of  the 
State  in  the  trial  of  said  suit,  the  court  wherein  such  suit  is  depend- 
ing  shall  and   may  by  commission   empower  such  and   so   many 
persons   as  may  be  thought  necessary,  to  take  and  receive   the 
deposition  of  such  witness,  which  being  duly  taken  and  returned, 
as  hereinafter  is   directed,  shall  be  received  as  legal  testimony  ; 
and  in  all  cases,  where   depositions  are  taken  in  a  court  of  law,  it  cierk  to  pass 
shall  be  lawful  for  the  court  to  direct  the  clerk  to  pass  upon  such  "p?n  all  depo- 
depositions,  under  the  same  rules,  regulations  and  restrictions  as  ^^  ^°'^^" 
are  observed  by  clerks  and  masters  in  chancery  in  passing  on  de- 
positions to  be  read  in  chancery. 

69.   Provided  always  that  the  party,   praying  such  commission,  Notice  to  be 

1     „      .  1  .       "^        ,  1     ^       -^       ^      -^  c  °i        •  11         '  ^-iven  to  the  ad- 

sliall  give  such  notice  to  the  adverse  party  oi  the  time  and  place,  Verse  party  of 
when  and  where  such  commission  is  to  be  executed,  as  the  court  ^i]*^  ^™°  and 
shall  think  proper,  and  the  adverse  party  shall  have  power  to  cross-  Lp^i'tion's^"^ 
examine  any  witness  whose  deposition  shall  be   so  taken,  and  all 
depositions  otherwise  taken  than  as  herein  directed,  unless  by  con- 
sent of  parties,  shall  be  void  to  all  intents  and  purposes. 

67.  1777,  c.  U5,  s.  38.— 1799,  c.  528. 

68.  1777,  c.  115,  s.  39.— 1803,  c.  633 — 1823,  C.  24,  s.  1  and  2.— 1836,  c.  30. 

69.  1777,  c.  115,  s.  40. 

VOL.  I.  21 


162 


COURTS,  COUNTY  AND  SUPERIOR.  [ChAP.  XXXI. 


Under  what 
circumstances 
depositions  of 
"witnesses  may 
be  taken  before 
the  cause  is 
put  to  issue. 
Notice  to  be 
given,  &c. 


Witnesses  re- 
fusing to  give 
testimony  in 
court  or  before 
commissioners 
to  be  commit- 
ted. 


Witnesses  du- 
ring their  at- 
tendance to  be 
exempt  from 
the  service  of 
all  civil  process 
except  subpoe- 
nas. 


Pay  of  witnes- 
ses for  their 
attendance. 


After  the  re- 
moval of  a 
cause,  subpoe- 
nas and  com- 
missions to 
take  testimony 
may  be  issued 
from  either 
court. 


70.  If  any  person,  who  may  be  a  witness  in  any  cause  depend- 
ing in  any  of  the  said  courts,  shall  be  under  the  necessity  of  leav- 
ing the  State,  before  such  cause  is  to  be  tried  or  even  before  such 
cause  shall  be  at  issue,  or  be  in  a  dangerous  state  of  health,  upon 
oath  thereof  made  before  any  of  the  justices  of  the  said  courts, 
such  justice  is  hereby  empowered  to  order  the  clerk  of  the  court, 
where  such  cause  is  depending,  to  issue  a  commission  to  one  or 
more  persons  to  take  the  deposition  of  such  witness,  notice  being 
first  given  to  the  adverse  party  of  the  time  and  place,  when  and 
where  such  deposition  is  to  be  taken,  as  follows,  to  wit  :  where  the 
party  to  be  notified  does  not  reside  or  is  not  more  than  ten  miles 
from  the  place  where  the  deposition  is  to  be  taken,  three  days  pre- 
vious notice  of  the  time  and  place  ;  in  all  other  cases  one  day  more 
for  every  additional  ten  miles  ;  which  deposition,  w^hen  returned 
taken  in  manner  aforesaid,  shall  be  received  as  legal  evidence. 

71.  If  any  person,  who  shall  be  summoned  as  a  witness  in  any 
of  the  said  courts  or  before  any  persons  appointed  to  take  deposi- 
tions as  aforesaid,  shall  refuse  to  give  testimony  on  oath,  such  per- 
son so  refusing  shall,  by  the  court  or  by  the  commissioners  before 
whom  he  shall  be  summoned,  be  committed  to  the  common  pri- 
son, there  to  remain  without  bail  or  mainprise,  until  he  shall  be  wil- 
ling to  give  testimony  in  such  manner  as  the  law  doth  or  may  di- 
rect. 

72.  During  the  attendance  of  any  person,  summoned  as  a  wit- 
ness to  any  court  whatsoever  and  during  the  time  that  such  person 
is  going  to  and  returning  from  the  place  of  such  attendance,  allow- 
ing one  day  for  every  twentyfive  miles  such  witness  has  to  travel 
to  and  from  his  place  of  residence,  no  sheriff  or  other  officer  shall 
serve  or  execute  on  such  persons,  so  attending,  going  to  or  return- 
ing from  said  court,  any  writ  or  other  civil  process,  warrant,  order, 
judgment  or  decree  in  any  cause  (summons  for  witness  excepted) : 
and  if  any  such  shall  be  executed  the  same  shall  be  and  is  hereby 
declared  null  and  void. 

73.  Each  person,  who  shall  attend  any  superior  or  county  court 
as  a  witness  in  any  cause  therein  depending,  shall  be  allowed  for 
each  and  every  day's  attendance,  and  for  every  thirty  miles  he  may 
travel  going  to  and  returning  from  said  court,  sixty  cents,  provided 
said  witness  lives  within  the  county,  or  the  sum  of  one  dollar  if  the 
said  witness  fives  without  the  county.  Provided,  that  in  counties 
where  witnesses  are  by  law  allowed  a  greater  sum  than  above  stat- 
ed per  day  for  attending  county  courts  they  shall  continue  to  be 
paid  as  heretofore. 

74.  When  any  cause  shall  be  removed  from  the  superior  court 
of  any  county  to  another,  after  the  order  of  removal  depositions 
may  be  taken  in  the  case,  and  subpoenas  for  the  attendance  of  wit- 
ness and  commissions  to  take  depositions  may  issue  from  either  of 
said  courts,  under  the  same  rules  as  if  the  case  had  been  originally 

70.  1777,  c.  115,  s.  41.— 1803,  c.  633. 

71.  1777,  c.  115,  s.  42. 

72.  1777,  c.  115,  s.  44. 

73.  1777,  c.  115,  s.  45.— 1806,  c.  694,  s.  9.-1819,  c.  1023. 

74.  1810,  c.  7S7.— 1832,  c.  8.  "       . 


Chap.  XXXI.]  courts,  county  and  superior.  163 

commenced  in  the  court  from  which  the  subpoenas  or  commissions 
issued. 

75.  Every   person  being  lawfully  summoned,  who  shall  attend  Witnesses  to 
any  of  the  superior  or  county  courts  of  this  State  as  a  witness  in  P^^^j^^g  J[ '^^^ 
any  suit,  (those  wherein  the  State  is  a  party  excepted,)  shall,  at  each  court. 
each  court  before  the  clerk  thereof  or  his  lawful  deputy,  ascertain 

by  his  or  her  own  oath  or  affirmation  the  sum  due  for  travelling  to 

and  from  court,  attendance   and  ferriage,  which  shall  be  certified 

by  the  clerk  or  his  lawful  deputy  ;  and  on   failure  of  the  party,  at  How  witness 

whose  instance  such  witness  was  summoned,  to  pay  off  and  dis-  V\^y  recover 

r  1  •  11  r     1  •  /•  1      his  pay  for  at- 

charge  the  same  previous  to  the  departure  oi  the  witness  h'om  the  tendance, 
court,  it  shall  be  lawful  for  such  witness  to  sue  for  and  recover  the 
same  from  the  party  summoning  him  or  her,  at  such  time  as  he  or 
she  may  see  proper,  before  any  jurisdiction  having  cognizance 
thereof,  and  the  certificate  of  the  clerk  or  his  lawful  deputy  shall 
be  sufficient  evidence  of  the  debt  :  Provided  ahvays,  that  in  any 
case  where  recovery  may  be  had  before  a  justice  of  the  peace  on 
a  witness  ticket  or  certificate,  it  shall  and  may  be  lawful  for  such  jus- 
tice, having  previously  defaced  such  ticket  by  writing  the  word 
judgment  in  large  letters  in  the  face  thereof,  to  deliver  the  same  to 
the  person  against  whom  recovery  is  had  thereon. 

76.  At  the  court,  at  which  any  cause  shall  be  finally  determin- Y''"^^  ^^^!^^' 
ed,  the  party,  in  whose  favor  judgment  shall  be  given,  shall  file  or  with  the  clerk 
cause  to  be  filed  the  certificates  of  the  attendance  of  witnesses  ii^  !h '^bli^'f^'^A"^ 
the  clerk's  office,  the  amount  whereof  shall  be  taxed  in  the  bill  ofp^^^^^  ^.j^g^j^ 
costs,  to  be  levied  and  recovered  for  the   benefit  of  said  party,  pay  for  but  two 
Provided,  that  the  party  cast  shall  not  be  obliged  to  pay  for  more  p7o"eThl  same 
than  two  witnesses  to  prove  any  single  fact.  fact. 

77.  The  clerks  of  the  several  superior  courts  of  law  and  equity  Costs  of  publi- 
and  clerks  of  the  county  courts  shall  tax  the  party,   bound  to  pay  age°o"fletterT^' 
the  costs  of  the  suit,  with   the  costs  of  pubhcations  in  the  news- covering  pro- 
papers,  which  have  been  ordered  by  the  court,  and  with  the  post-  *^^^^  o  e  axe  . 
age  of  all  letters  which  cover  the  transfer  of  original  or  mesne  pro- 
cess from  one  county  to  another. 

78.  In  all  cases  where  witnesses  are  required  to  attend  any  com-  Subpoenas  for 

^'itllGSSGS  to 

missioners,  referees,  order  of  survey,  or  jury  of  view,  a  summons  attend  commis- 
shall  be  issued  by  the  clerk  of  the  court  at  the  request  of  either  sioners  &c. 

,     .  •'  -11  111  1  how  to  be  is- 

party  or  their  agent,   expressing  the  day  and  place  where  they  are  sued. 
to  appear,  the  names  of  the  parties  to  the  suit  and  in  whose  behalf 
summoned  ;  and  all  witnesses,  summoned  in  pursuance  of  this  sec- 
tion, shall  be  entitled  to  the  same  privileges  and  receive  the  sameP^y  °f  7'it- 

•  •  •  HGSSGS  lor  3t- 

pay  for  their  attendance  and  be  subject  to  the  same  pains  and  pen-  tending  com- 
alties  for  non-attendance,  as   witnesses  summoned  to   attend  the  missioners,  &c. 
courts. 

79.  In  all  actions  whatsoever,  the  party,  in  whose  favor  judg-  whosTfavor'^ 
ment  shall  be  given,  or,  in  case  of  a  nonsuit,  dismission  or  discon-  judgment,  &c. 

is  given,  to  re- 
cover full  costs. 

75.  1796,  c.  458,  8.  1.— 1777,  c.  115,  s.  46. 

76.  1796,  c.  458,  s.  2.— 1733,  c.  189,  s.  3. 

77.  1819,  c.  995,  s.  1  and  2. 

78.  1805,  c.  685,  s.  1  and  2. 

79.  1777,  c.  115,  S.  90. 


164  COURTS,  COUNTY  AND  SUPERIOR.    [ChAP.  XXXI. 

tinuance,  the  defendant,  shall  be  entitled  to  full  costs  unless  when 

it  is  or  may  be  otherwise  directed  by  statute. 
Defendant  may,      80.   In  all  cases  where  there  are  or  shall  be  mutual  debts  sub- 
in  certain  cases,  gjg^jj^g  between  the  plaintiff  and  defendant,  or  if  either  party  sue 
or  give  it  in  ev- or  be  sued  as   executor  or  administrator  where  there  are  mutual 
idence  under     (Jebts  subsistine;  between  the  testator  or  intestate  and  either  party, 

tllG  STGllSrS.!  IS-  ^  1  J  ^ 

sue  upon  notice  One  debt  may  be  set  against  the  other,  either  by  being  pleaded  in 
to  the  plaintiff,  j^gj.^  qj.  gjygn  j^  evidence  on  the  general  issue  on  notice  given  of 
the  particular  sum  intended  to  be  set  off  and  on  what  account  the 
same  is  due,   notwithstanding  such  debts  shall  or  may  be  deemed 
in  law  to  be  of  a  different  nature,  but  if  either  debt  arose  by  reason 
of  a  penalty,  the  sum  intended  to  be  set  off  shall  be  pleaded  in  bar 
setting  forth  what  is  justly  due  on  either  side. 
«)lored °"'rsoi .       ^^'  '"  ^  ^^^^^  cascs  whatsoever  the   evidence  of  all  negroes, 
incompetent     Indians,  mulattoes,  and  of  all  persons  of  mixed  blood,  descended 
against  white    fj-Qj^  negro  or  Indian  ancestors  to  the  fourth  generation  inclusive, 
Admissible       though  One  ancestor  of  each  generation   may  have  been  a  white 
ofher^^  ^^^^^     person,  whether  the  person  or  persons,  whose  evidence  is  offered, 
be  bond  or  free,  shall  be  inadmissible  and  the  witnesses  incompe- 
tent except  against  each  other. 
In  what  cases       82.   In  all  actions  upon  the  case  for  slanderous  words  and  in  all 
slander  and  as-  actions  of  assault  and  battery,  if  the  jury  upon  the  trial  of  the  issue 
sauit  and  bat-   Jn  such  action,  or  the  jury  that  shall  inquire  of  the  damages,  do  find 
tiff^ shall  no^"^  or  assess  the   damages  under  four  dollars,  then  the  plaintiff  or 
recover  more    plaintiffs  in  such  actiou  or  actions  shall  have  and  recover  only  so 

costs  than  ■*         ,  ,        ,  ■  i     i     n 

damages.         much  costs  as  the  damages  so  given  or  assessed  shall  amount  unto, 

without  further  increase  of  the  same. 
In  trespass  go    j       jj  actions   of  trespass   quare  clausum  fre^it,  wherein 

guare  dausum  i    r       i  i    r      j  i     n     t      i    •         •      i  •  i     •        i 

fregity  the  de-  the  dciendant  or  detendants  shall  disclami  m  his  or  their  plea  to 
fendant  may     niake  any  title  or  claim  to  the  lands,  in  which  the  trespass  is  by 

disclaim  and  ^      .  j         i        i  i     i  i       i  i- 

plead  tender,  the  declaration  supposed  to  be  done,  and  the  trespass  be  by  negh- 
^"^"     .  gence  or  involuntary,   the  defendant   or   defendants  shall  be  per- 

the\respass  in-  ""fitted  to  plead  a  disclaimer,  and  that  the  trespass  was  by  negligence 
voluntary  and  or  involuntary,  and  a  tender  or  offer  of  sufficient  amends  for  such 
favor^of  Thede-  trespass  brought,  whereupon  or  upon  some  of  them  the  plaintiff  or 
fendant,  the  plaintiffs  shall  be  enforced  to  join  issue,  and  if  the  said  issue  be 
L^bajred!  ^      found  for  the  defendants  or  the   plaintiff  shall  be  nonsuited,  the 

plaintiff  shall  be  clearly  barred  from  the  said  action  and  all  other 

suits  concerning  the  same. 
In  actions  of         34.  When  several  persons  are  made  defendants  to  any  action  of 

trespass,  &.c.  il  i  1  1  r-  1        •  •  •  1 

there  be  more  trespass,  assault  and  battery,  lalse  imprisonment  or  ejectment,  and 
than  one  de-      g^y  one  or  more  of  them   shall  upon  the  trial  thereof  be  acquitted 

lendant,  and       it  -iinii 

one  or  more  be  by  vcrdict,   every  person  or  persons  so  acquitted  shall  have  and 

acquitted,  the  recover  his  costs  of   suit,  in    like    manner  as  if   a  verdict  had 

quitted  shall  been  given  against  the  plaintiff  or  plaintiffs  and  acquitted  all  the 

recover  full  defendants,  unless  the  iudge  before  whom  such  cause  shall  be  tried 

costs   unlGSS  J  %}       ■^ 

the  judge  cer-  shall,  immediately  after  the  trial  thereof,  in  open  court,  certify  upon 
tifies,  &c. 

80.  1756,  c.  57,  s.  7. 

SI.  1777,  c.  115,  s.  42. 

62.  1715,  c.  2,  s.  8.— 1826,  c.  8. 

S3.  1715,  c  2,  s  7. 

S-1.  8  and  9  Will.  3,  c.  11,  s.  1. 


Chap.  XXXL]  courts,  county  and  superior.  165 

the  record,  under  his  hand,  that  there  was  a  reasonable  cause  for 
making  such  person  or  persons  a  defendant  or  defendants  to 
such  action  or  plaint. 

85.  In  all  causes  dependins;  in  any  of  said  courts,  in  which  the  ^'^.'■^'^'^^  ^^'^^  ^ 

1        •  I-  •    •      1  1    J       J    •  r     1  1  1-         /K    subpcena  duces 

production  oi  an  original  paper,  lodged  in  any  ot  the  public  om-  tecum  may  is- 
ces  of  the  State  or  in  any  office  of  a  county,  superior  or  supreme  ®''®' 
court,  shall  become  necessary,  the  said  court  shall  have  power  to 
issue  the  process  of  subpcena  duces  tecum,  requiring  such  persons 
as  hold  said  offices  respectively  to  attend  the  court,  from  whence 
said  process  issued,  with  such  original  paper,  in  hke  manner  and 
under  the  same  penalties  as  witnesses  are  required  to  attend  in 
cases  of  subpoenas  to  testify. 

86.  The  said  courts  shall  have  full  power  in  the  trial  of  actions  9°"'"?  ,"^^y  °''' 

1^  ,  .  ,,  .     '■    ,  (-1-  •  der  either   par- 

betore  them,  on  motion  and  due  notice  thereot  being  given,  to  re-  ty  to  produce 
quire  the  parties  to  produce  books  or  writings  in  their  possession  books  or  pa- 
or  power,  which  contain  evidence  pertinent  to  the  issue,  in  cases 
and  under  circumstances  where  they  might  be  compelled  to  pro- 
duce the  same  by  the  ordinary  rules  of  proceeding  in  chancery  ; 
and  if  a  plaintiff  shall  fail  to   comply  with  such  order  to  produce  Consequences 
books  or  writing,  or  shall  not  satisfactorily  account  for  such  failure,  produce. 
it  shall  be  lawful  for  the  said  courts  respectively  on  motion  to  give 
the  like  judgment  for  the   defendant  as  in  cases  of  nonsuit  ;  and  if 
a  defendant  shall  fail  to  comply  with  such  order  to  produce  books 
or  writings,  or  shall  not  satisfactorily  account  for  such  failure,  it 
shall  be  lawful  for  the  said  courts  respectively  on  motion  as  afore- 
said to  give  judgment  against  him  or  her  by  default. 

87.  In  all  petitions  for  dower  and  partition,  the  court  before  i"  petitions  for 
whom  the  same  maybe  tried,  may,  at  their  discretion,  decree  by  ti°n  The  cost's^' 
whom  and  in  what  manner  the  costs  accrued  thereon  shall  be  paid,  are  at  the  dis- 

88.  It  shall  and  may  be  lawful  for  any  person  or  persons,  bodies  court." 
pohtic  or  corporate,  having  a  right  to  demand  any  sum  of  money  ,Actioji  maybe 

\  11-  •       1     1  -11     1  1  1        brought  asamst 

due  upon  any  endorsed  promissory  note,  single  bill,  bond  or  other  the  maker  of  a 
writing  obligatory,  which  is,   shall  or  maybe  negotiable  by  the  ^iP-^c.  jointly 
laws  of  this  State,  to   commence   and  prosecute,  at  the  option  of  sers,  or  against 
the  person  or  persons,  bodies   politic  or  corporate  having  such  ^JJ  or  any  one 
right,  an  action  or  actions  for  such  sum  or  sums  of  money,  so  due 
as  aforesaid, against  the  maker  or  makers  of  such  promissory  note, 
obligor  or  obligors  in  such  bill,  bond  or  other  writing  obhgatory,  and 
the    endorser  or  endorsers   thereof,  jointly  or  against  any  one  or 
more  of  such  makers  or  obligors  and  endorsers,  and  judgment  shall 
and  may  be  given  accordingly. 

89.  In  all  cases   of  joint  obligations  or  assumptions  of  copart- On  joint  obli- 
ners  in  trade  or  others,  suits  may  be  brought  and  prosecuted  on  fopsmnert^c^ 
the  same  against  the  whole  or  any  one  or  more  of  such  persons  action  may  be 
making  such  obligations,  assumptions  or  agreements.  brought aaamst 


or  any  one 


85.  1797,  c.  476. 

86.  1821,  c.  1095.— 1828,  c.  7. 

87.  182S,  c.  25,  s.  1. 

88.  1796,  c.  464,  s.  3.— 1817,  c.  937. 

89.  1797,  c.  475,  s.  2. 


166  COURTS,  COUNTY  AND  SUPERIOR.    [ChAP.  XXXI. 

Joint  obliga-  90.  In  case  of  the  death  of  one  or  more  joint  obligor  or 
vTtc a-^ainst^ '  obHgors,  the  joint  debt  or  contract  shall  and  may  survive  against 
heirs,  execu-  the  heirs,  exccutors  and  administrators  of  the  deceased  obligor  or 
decreased  obli-  obligors,  as  Well  as  against  the  survivor  or  survivors,  and  when  all 
gor.  the  obligors  shall  die,  the  debt  or  contract  shall  survive  against  the 

heirs,  executors  and  administrators  of  all  the  said  joint  obligors. 
Howthejudg-  91.  In  all  cases  where  an  executor  or  administrator  shall  be  su- 
entered  when  ^^  ^^^^^^  ^  Surviving  obligor,  and  it  may  be  necessary  that  judgment 
the  suit  is  should  be  rendered  asainst  such  executor  or  administrator,  such 
ecutor  &a  of  process  and  judgment  may  be  awarded  against  the  same  as  if  such 
the  deceased  executor  Or  administrator  had  been  sued  severally,  and  judgment 
sumvor!'^  ^  ^  ^^W  ^6  awarded  and  entered  up  against  the  surviving  obligor  or 

obligors  as  is  usual  in  other  cases. 
When  more  ac-      92.  Where  there  ai'e  more  obligors   or  endorsers  than  one  on 

tions  than  one  .  ,  .",  ,      .  i     i  i    • 

are  brought  on  any  promissory  note  or  other  negotiable  instrument,  and  the  pJain- 
a  promissory     tiff  shall  institute  more  suits  than  one  upon  such  promissory  note 

not6  qlc   trie  .  .  ■  .  . 

court  may  con-  or  negotiable  instrument  against  the  obligors  or  endorsers,  the  suits 
sohdate  them,  go  brought,  on  the  return  of  the  writs  to  the  court  from  whence 
they  issued,  shall  be  consolidated,  so  that  but  one  set  of  costs  shall 
be  incurred  thereon,  except  as  to  the  sheriffs'  and  clerks'  fees  for 
serving  and  issuing  said  writs,  which  shall  be  the  same  as  in  other 
cases. 
Judgment  93.   w\  judgment  bonds,  notes  and  other  writings,  with  power 

Doncls  void  3.S  *j       o  /  o  J  J. 

to  power  to  en- to  any  person  whatever  to  confess  judgment  thereon,  shall  be  and 
ter judgment,    ^re  hereby  declared  utterly  void,  as  to  such  power,  but  the  same 

out  ffOOd  £LS  ,   "^  J  '  y  ' 

common  law     proceedings  shall  be  had  thereon  as   on  common  bonds  and  penal 

or  penal  bonds.  notCS. 

Where  a  de-         94,  Where  any  judgment  or  decree  shall  be  obtained  in  any 

suUhithe  ^     county  court  of  pleas  or  quarter  sessions  for  any  debt,  damages, 

county  court     portion,  legacy,  or  distributive  share  of  an  intestate's  estate,  and  the 

self  or  his    '    person  against  whom  such  judgment  or  decree  shall  be  obtained, 

property,  the     shall  remove  him  or  herself  and  effects,  or  shall  reside  out  of  the 

an'execuucm  to  hniits  of  the  jurisdiction  of  such  court,  it   shall  be  lawful  for  the 

any  county,  &c.  clerk  of  the  court,  where  such  judgment  shall  be  given  or  decree 

made,  at  the  request  of  the  plaintiff,  to  issue   execution   to   any 

county  of  this  State  where  the  defendant  or  his  goods  may  be  found, 

and  the  sheriff  or  other  officer,  to  whom  the  same  maybe  directed, 

is  hereby  empowered  and  required  to  execute  the  same  and  make 

return  thereof,  in  the  same  manner  as  is  directed  for  the  return  of 

process  issuing  from  the  superior  courts. 

In  actions  for         95.   In  all  actions  brought  to  recover  money  due  by  contract, 

contTactf  exc'^ept  except  on  penal  bonds,  it  shall  be  the  duty  of  the  jury  to  distin- 

penal  bonds,     guish  by  their  verdict  the  sum  due  as  principal  from  the  sum  allow- 

distu"ui^^be-  ed  for  interest,  and  the  principal  sum   due  on  all  such  contracts 

tweenVincipal  shall  caiTy  interest  from  the  time   of  rendering  judgment  thereon 

and  thriud^cr'.    ""til  the  same  shall  be  paid  and  satisfied,  and  the  judgments  in  such 

ment  for  prm- 

cipal  shall  car-      9,3.  i^-j^g   g.  314,  s.  4.— 1786,  c.  253,  s.  1. 

ry  interest.  91.  1707,  c.  475,  s.  1. 

92.  1S20,  c.  1046 

93.  1783,  c.  188,  s.  2. 
04.  1777,  c  115,  S.  70. 
95.  1807,  c.  721. 


Chap.  XXXI.]  courts,  county  and  superior.  167 

actions   shall  be  rendered    according   to  the  provisions   of    this 
act. 

96.  Whenever  a  suit  shall  be  instituted  on  a  single  bond,  a  cov-  in  an  action  on 
enant  for  the  payment  of  money,  a  bill  of  exchange,  a  promissory  &c!"if  defend- 
note  or  a  signed  account,  and  the  defendant  shall  not  plead  to  issue  ant  makes  no 
thereon,  it  shall  and  may  be  lawful  upon  judgment,  without  a  writ  ^ay  calculate 
of  inquiry,  for  the  clerk  of  the  court  to  ascertain  the  interest  due  interest, -with- 
by  law,  and  the  amount  shall  be  inchided  in  the  final  judgment  of  "nqu^ry" 

the  court  as  damages,  which  judgment  is  to  be  rendered  therein  in 
the  same  manner  prescribed  by  the  preceding  section. 

97.  All  petitions  to  the  county  or  superior  courts  may  be  filed  Petitions  may 
during  the  term  or  in  vacation,  and  it  shall  be  the  duty  of  the  clerks  cation. 

of  the  courts,  in  whose  offices  such  petitions  may  be  filed,  to  en- 
dorse thereon  the  time  of  filing,  and  to  issue  copies  and  subpoenas 
to  be  served  as  heretofore,  but  in  case  the  petitioner  or  petitioners 
shall  specify  the  amount  of  his,  her,  or  their  debt  or  demand  (as 
nearly  as  may  be)  and  shall  make  oath  or  affirmation  to  the  same, 
in  open  court,  or  before  the  clerk  of  the  court,  in  whose  office  his, 
her  or  their  petition  is  filed,  it  shall  be  the  duty  of  said  clerk  to 
issue  copies  of  said  petition  to,   and   a  capias  ad  respondendum  cierk  to  issue 
against,  the  defendant  or  defendants  in  said  petition,  whom  the  peti- a  capias  upon 
tioner  or  petitioners,  by  his,  her   or  their  affidavit,  shall  charge  to  fno-'^ffid^vit'^of 
be  his,  her   or  their  debtor  or  debtors,  for  the  amount  so  charged  ;  the  amount  of 
and  the  sheriff  is  hereby  required  to  execute  said  capias  ad  respon-  ^^  ^^^^ 
dendum  as  is  now  required  by  law  in  cases  of  capias  ad  responden- 
dum, and  to  take  bail  in  like  manner,  and  the  bail,  when  so  taken, 
shall  be  liable  and  proceeded   against  as  bail   are  now  liable  and 
proceeded  against  at  law. 

98.  In  all  cases  of  suits  by  petition,  in  which  a  copy  of  the  peti-  When  a  peti- 

1  ,  •  1     n    T  1  1  ption  IS  served 

tion  and  a  subpoena  or  capias  shall   have   been  served  on  one  oi  upon  one  of 
the  defendants,  and  it  shall  be  shewn  to  the  court  by  affidavit  that  several  defen- 

1  ,  1    r       1  1    (■       1  •  •    1     1  •  r     1  •    dants  and  the 

the  other  deiendant  or  detendants  is   or  are  not  inhabitants  oi  this  others  reside 
State,  or  on  diligent  inquiry  cannot  be  found,  the  court  shall  make  ^^  °^  ^}^^ 

.  .  State  the  court 

an  order  directing  such  defendant  or  defendants  to  appear  to  the  shall  order 
said  suit  and  make  his,  her   or  their  defence  to  the   same   at  the  P'^'^''^'^^*°"  ^° 

[.  .  J.     ■,  .  .  ,  ,       be  made  for 

next  or  some  alter  term  or  session  oi  the  said  court,  or  that  the  five  weeks. 
petition  will  be  taken  pro  confesso  against  him,  her  or  them,  and 
heard  accordingly  ;  and  if  it  shall,  at  the  term  or  sessions  so  ap- 
pointed, be  proved  to  the  court  that  the  said  order  was  pub- 
lished five  weeks  successively  in  the  paper  nominated  by  the 
court,  within  fifty  days  after  the  said  order  was  made,  the  court 
may  proceed  to  the  trial  of  the  cause  and  to  pass  judgment  or 
to  decree  thereon,  which  judgment  and  decree  shall  bind  and 
conclude  such  defendant  or  defendants  to  the  same  extent  and 
vmder  the  same  rules  and  regulations,  as  defendants  are  now  bound 
by  like  proceedings  in  the  courts  of  equity. 

99.  When  any  matter  of  account  shall  be  involved  in    a  suit  by  ?°^.'i'^  ™f ^  i'"^" 

-^  11-11  1-  1  11      der  the  clerk  to 

petition,  the  court  may  order  their  clerk  to  audit   and    settle    the  audit  and  settle 

accounts. 

96.  1808,  c.  746,  s.  1. 

97.  1631,  c.  14,  s.  1.— 1806.  c.  703,  s.  3. 

98.  1806,  c.  703,  s.  1. 

99.  1806.  c.  703,  s.  2.    ■ 


168  COURTS,  COUNTY  AND  SUPERIOR.  [ChAP.  XXXI. 

accounts  involved  in  the  cause  and  to  report  the  balance  due  thereon, 
in  the  same  manner  and  under  the  same  rules  and  regulations  as 
references  are  made  by  the  courts  of  equity  to  the  clerk  and  masters 
thereof;  and  the  clerk  shall  be  entitled  to  the  same  compensation 
for  such  services  as  the  clerks  and  masters  are  now  allowed  by  law. 
Any  two  jus-         jqo.   Any  two  iustices  of  the  peace  may  take  depositions  to  be 

tices  may  take  ■'  J      ,  .   .      ^      K      ,  •' .  .         .     \ 

depositions  to  read  as  evidence  m  the  trial  oi  suits  by  petition,  m  the  same  man- 
be  read  on  pe-  jjgj.  g^^fj  under  the  same  rules  and  regulations    as    depositions  are 

taken  to  be  read  in  the  trial  of  suits  in  equity. 
Pees  of  clerk        101.   The  clcrk  shall   take  and  receive  the  same  fees    for    the 
on  petitions,     copies  and  process  in  suits  by  petition  as   the   clerks  and   masters 

are  now  entitled  to  for  like  services. 
^ue^b^MieiJ  ^^^'   "^^^  persons  within  age  may  sue  by  their  next  friend. 

next  friend.  103.    Whenever  a  person,    plaintiff  or   defendant   in    any   suit 

Either  party  to  in  any  of  said  superior  courts,  shall  except  to  the  opinion 
fender  uTthe  o^  the  court  trying  the  cause  and  the  same  shall  not  be  allowed, 
judge  a  bill  of  the  party  making  the  exception  shall  commit  the  same  to  writing 
excep  ions.  ^^^  require  the  same  to  be  signed  and  sealed  by  the  court  before 
Judge  to  sign  whom  the  said  exception  is  taken,  and  the  judge  presiding  shall 
and  seal  the  gjg-j^  ^jj^j  gg^j  []^q  gaj^e  ",  and  if  the  presiding  iudge  will  not  sign  and 
refuse,  some  Seal  the  said  bill  of  exceptions,  it  shall  be  signed  and  sealed  by 
other  person     gome  Other  pcrson  present  at   the    time    of  the    exception  taken  ; 

T)rt!S6n,t  in3.v  ....  . 

sign  and  seal  it.  which  bill  of  exception  so  signed  as  above  shall  constitute  and  be 
a  part  of  the  record,  and  upon  an  appeal,  the  court,  before  whom 
the  said  appeal  shall  be  tried,  shall  proceed  to  judgment  according 
to  the  same  exception  as  it  ought  to  be  allowed. 
Actions  of  ac-       104.   Actions  of  account  shall   and  may  be    brought  and  main- 
count  may  be    tained    against  the  executors  and  administrators  of  any   guardian, 

brought  against ,     -Tn-         i  •  i     i       i  •    •  i  • 

the  executors  bailin  and  receiver,  and  also  by  one  joint  tenant  and  tenant  m  com- 
and  admin-       mon,  his  executors  and  administrators  against   the  other  as  bailiff 

istrators  oi  ^  .    .  ,  ,  .      .     "     ,  .  , 

guardians,  &c.  lor  receiving  more  than  comes  to  his  just  share  or  proportion,  and 
against  the  executor  and  administrator  of  such  joint  tenant  and  ten- 
ants in  common  ;  and  the  auditor  appointed  by  the  court,  where 
such  action  shall  be  pending,  shall  be  and  is  hereby  empowered  to 
administer  an  oath  and  examine  the  parties  touching  the  matter  in 
question,  and  for  his  pains  and  trouble  in  and  taking  such  accounts 
have  such  allowance  as  the  court  shall  adjudge  to  be  reasonable,  to 
be  paid  by  the  party  against  whom  the  balance  of  the  account  shall 
appear  to  be. 
If  an  action  105.   If  an   action    be    brought  in  good  faith  by  any    person  to 

brbmu<4T'^^^^  recover  any  penalty  under  any  law  of  this  State  or  of  the  United 
good  fafth,  and  States,  and  the  defendant  shall  plead  in  bar  thereto  a  former  judg- 
pkad*^a  former  ™®"t  recovered  against  him  or  them  by  any  other  person  for  the 
judgment  same  causc  of  action,  or  a  former  judgment  rendered  in  his  or  their 
lfc^"pkind(f  I^vor  in  a  former  action  brought  by  any  other  person  for  the  same 
may  reply        cause  of  actiou,  then  the  plaintiff  in  such  action,  brought  in  good 


fraud,  Slc. 


100.  1806,  c.  703,  s.  4. 

101.  1306,  c.  703,  s.  5. 

102.  13  Edw.  1,  c.  15. 

103.  13  Edw.  1,  c.  31. 

104.  4  Anne,  c.   16,  s.  27. 

105.  4  Hen.  7,  c.  20. 


Chap.  XXXI.]  courts,  county  and  superior.  169 

faith,  may  aver  that  the  said  former  recovery  in  said  popular  action 
was  had  by  covin,  or  else  aver  that  the  former  judgment  in  the  said 
popular  action  in  favor  of  the  defendant  or  defendants  was  had  by 
covin  ;  then  if  afterwards  said  collusion  or  covin  so  averred  be 
lawfully  found,  the  plaintiff  or  plaintiffs  in  that  action,  sued  with 
good  faith,  shall  have  recovery  according  to  the  nature  of  the 
action,  and  execution  upon  the  same  in  like  manner  and  effect  as  if 
no  such  judgment  had  been  before  had  ;  and  no  release  made  by 
such  party,  whether  before  action  brought  or  after,  shall  be  in  any 
wise  available  or  effectual  ;  and  every  person,  pleading  such  false 
plea,  shall  be  further  liable  to  indictment,  in  any  court  having  juris- 
diction of  the  same,  and  upon  conviction  shall  be  imprisoned  at  the 
discretion  of  the  court. 

106.  Where  any  action  of  debt  shall  be  brought  on  any  single  ^"J^"  ^*=ti?"  o[ 
bill,  or  when  any  action  of  debt  or  scire  facias  shall  be  brought  on  &c.  payment  ' 
any  judgment,  if  the  defendant  hath  paid  the  money  due  upon  such  maybe  pleaded, 
bill  or  judgment,  such  payment  shall  and  may  be  pleaded  in  bar  of 

such  action  or  suit ;  and  when  an  action  of  debt  is  brought  upon 
any  bond,  which  hath  a  condition  or  defeasance  to  make  void  the 
same  upon  payment  of  a  lesser  sum  at  a  day  or  place  certain,  if  the 
obligor  his  heirs,  executors  or  administrators  have,  before  the  action 
brought,  paid  to  the  obligee,  his  executors  or  administrators,  the 
principal  and  interest  due  by  the  defeasance  or  condition  of  such  bond, 
though  such  payment  were  not  made  strictly  according  to  the  con- 
dition or  defeasance,  yet  it  shall  and  may  nevertheless  be  pleaded 
in  bar  of  such  action,  and  shall  be  as  effectual  a  bar  thereof,  as  if 
the  money  had  been  paid  at  the  day  and  place  according  to  the 
condition  or  defeasance,  and  been  so  pleaded. 

107.  If  at  any  time  pending  an  action  on  any  such  bond  with  a^^^"^  action  of 
penalty,  the  defendant  shall  bring  into  court,  where  the  action  shall  with  a  penalty, 
be  pending,  all  the  principal  money  and  interest  due  on  such  bond,  ^  the  defend - 
and  also  all  such  costs  as  have  been  expended  in  any  suit  or  suits  court  "hi  prin- 
in  law  or   equity  upon  such  bond,  the  said  money,  so  brought  in,  ^^Pf-^>  interest 
shall  be  deemed  and  taken  to  be  in  full  satisfaction  and  discharge  bond  shall  be 
of  said  bond,  and  the  court  shall   and   may  give  judgment  to  dis- ^^'^"^'^^  f^^- 
charge  every  such  defendant  of  and  from  the  same  accordingly.  ' 

108.  Every  judgment  given  in  a  court  of  record,  or  before  a  single  Judgment  of  a 
magistrate  having  jurisdiction  of  the  subject,  shall  be  and  continue tmreversed" 
in  force  until  reversed  according  to  law. 

109.  When  an  appeal  shall  be  taken  by  any  defendant,  from  the  Upon  an  appeal 
judgment  of  a  justice,  to  the  county  court,  the  said  court  shall  have  from  a  justice/s 
power,   upon  sufficient   cause   being  shown  on   affidavit  filed,  to  judgment  or  a 
compel  the  plaintiff  to   give  bond  and  sufficient  security  for  the  Jainwi  by  a  de- 
costs  of  said   suit  in  the  event  of  the  plaintiff's  failing  to  prosecute  fendant,  court 
the  same  with  effect  ;  and  if  any  judgment,  rendered  by  any  jus-  jljafnt^ifftoVve 
tice,  be  removed  at  the  instance  of  any  defendant  to  any  superior  security,  &c. 
court  by  writ  of  recordari  or  otherwise,  the  said  court  may,  upon 

106.  4  Anne,  c.  16.  s.  12. 

107.  4  Anne,  c.  16,  s.  13. 

108.  4  Hen.  4,  c.  23. 

109.  1831,  c.  29,  s.  1. 

VOL.  I.  22 


170  COURTS,  COUNTY  AND  SUPERIOR.   [ChAP.  XXXI. 

sufficient  cause   shewn   by  affidavit,  compel   the  plaintiff  in  such 
judgment  to  give  bond  and  sufficient  security  to  pay  all  costs  in 
the  event  of  the  plaintiff's  failure  to  prosecute  said  suit  with  suc- 
cess. 
Appeals  from  a      110.   When  an  appeal  shall  be  taken  to  the   county  court,  the 
trieTthe°first    ^^^'^^  ^hall  be  reheard  by  the  said  court,  whereupon  an  issue  shall 
term  of  the      be  made  up  and  tried  by  a  jury  at  the  first  term,  to  which  it  is  re- 
county  court,     turned,  unless  legally  continued,  and  judgment  shall  be  given  there- 
Party  cast  to    on  and  the  party  cast  shall  pay  the  costs  of  all  the  proceedings,  to 
P  y  a   COS  s.    ^^   taxed  by  the  court ;  and   execution  may  issue  for  the  same 
against  the   principal  and   securities,   when  judgment  is    granted 
against  the  plaintiff. 
If  plaintifT  ap-       m.   Provtrfet?  if  judgment  be   entered  for  the  plaintiff  by  the 
judgment  in     justice  and  he  appeal,  such  appeal  shall  be  at  the  costs  of  the  plain- 
his  favor,  it      tiff,  unless  the  court,  on  the  trial,  shall  be  of  opinion  that  there  was 
costs  unless  ^^  Sufficient  cause  for  such  appeal ;    and  in  such  case  plaintiff  shall 
sufficient  cause  recover  hiscosts,  on  motion. 

is  shewn.*^^^^^  112-  In  all  appeals  from  the  county  to  the  superior  court,  if  the 
Appeals  from  trial  in  the  county  court  was  of  an  issue  to  the  country,  a  trial  de 
the  county  to    novo  shall  be  had  ;  and  if  on  a  hearing;  of  a  petition  for  a  filial  por- 

the  sup<^rior  .  '..,.,  o^         .    f^  t 

court,  ho w to  be  ti on,  or  legacy,  or  distrioutive  share  oi  an  mtestate  s  estate  or  other 
tried.  matter  relating  thereto,  a  rehearing  at  the   superior  court  without 

notice  given  by  either  party. 
The  mcreasmg      HQ,   In  every  leap  year,  the  increasing  day  and  the  day  before 
year,  how  to  be  shall,  in  all  legal  proceedings,  be  accounted  as  one  day. 
counted.  j  i^    ]\Tq  execution  shall  issue  upon   any  judgment  obtained  in 

tolssue'^on  a"    ^"7  °^  ^aid  courts,  after  a  year  and  a  day  from  the  rendition  of  such 
judgment  after  judgment  :    Provided,  that  whenever  execution  hath  been  issued 
day  ^without  a  "poi^  s^id  judgment,  within  the  year  and  day,  it  shall  be  lawful  for 
scire  facias  to   the  clerk  to  issue  an  execution  to  enforce  said  judgment  at  any 
same!  ^  ^         ^^'^^  within  a  year  and  day  from  the  issuing  of  the  last  execution  ;  and 
when  the  party  claiming  the  benefit  of  such  j^ldgment,  shall  come 
after  the  year  and  day  as  above  stated,  he  shall  not  be  entitled  to 
an  execution  on  his  judgment,  until  he  have  caused  a  scire  facias 
to  be  issued  to  the   defendant,  wherein  the   sheriff  shall  be  com- 
manded  that   he  give   notice  to  the  party,  of   whom  it  is  com- 
plained,  that  he   appear  before  the  court,  in  which  the  judgment 
is,  at  a  certain  day,  to  show  if  he  have   any  thing  to  say  why  the 
judgment  ought  not  to  have  execution  ;  and  if  he  do  not  come  at 
the  day,  or  do  come  and  say  nothing  why  execution  ought  not  to 
be  done,  the  sheriff  shall  be  commanded  to  cause  the  judgment  to 
be  executed. 
PlamtifT  shall        ]i5_   j^j  q\\  cases  where  a  verdict  shall  pass  against  a  plaintiff, 

not  be  nonsuited   ,  i    ■      -/t"    i     n  i  •       i 

after  verdict,     the  same  piamtifi  shall  not  be  nonsuited. 

Party  commit-        HQ.  When  a  certiorari  or  writ  of  habeas  corpus  cum  causa  shall 

ted  in  execution .  i     i         i       -n-  i  rr  i  •      •      t  i       i     n 

not  to  be  dis-    issue,  and  tfie  sheriff,  or  other  officer  to  whom  it  is  directed,  shall 

charged  on  ha- 
beas corpus.     j^^  j^^^^  ^  j^^^  g  63—1794,  c.  414,  s.  1. 

111.  1794,  c.  4L4,  S.  17. 

112.  1777,  c.  115,  S.  77. 

113.  21  Hen.  3. 

114.  13  Edw.  1,  c,  45. 
11.5.  2  Hen.  4,  c.  7. 
116.  2  Hen.  5,  c.  2. 


Chap.  XXXI.]  courts,  county  and  superior,  171 

return  upon  the  same  that  the  prisoner,  which  is  so  holden  in  prison, 
is  condemned  by  judgment  given  against  him,  and  held  in  custody 
by  virtue  of  an  execution  issued  against  him,  the  said  prisoner  shall 
not  be  let  to  bail,  but  shall  be  presently  remanded,  where  he  shall 
remain  until  discharged  in  due  course  of  law. 

1 17.  In  all  actions,  the  death  of  either  party  between  the  verdict  ^1^^^^^^^  ^l 
and  the  judgment,  shall  not  be  alleged  for  error,  so  as  such  judg-  tween  verdict 
raent  be  entered  within  two  terms  after  such  verdict.  shall' "'^t'b^"'^ 

118.  When  any  judgment  after  a  verdict  shall  be  had  by  or  in  signed  for  er- 
the  name  of  any  executor  or  administrator,  in  such  case  an  admin-  ™''- 
istrator  de  bonis  non  may  sue  forth  a  scire  facias  and  take  execution  ^^  "honiTTwn^ 

on  such  judgment.  may  have  ex- 

119.  Whenever  suit  shall  be  brought  upon  any  bond  given  by  ^ent°o\°taS' 
any  executor,  administrator  or  guardian  for  the  faithfiil  performance  by;  former  ad- 
of  his  or  her  duty  as  such,  it  shall  be  the  duty  of  the  court,  at  the  "^™^^'''*^°^- 

•'    f,      .  ,       .  .  r    •  \  r        1      ^n.  suits  upon 

appearance  term  oi  said  suit,  on  motion  oi  either  party,  to  reter  the  the  bonds  of 
same  to  any  person  or  persons,  to  whom  both  the  parties  agree  to  executors,  ad- 

.  i  o  minis  tr3.tors 

have  it  referred  ;  and  if  they  cannot  agree  on  persons  to  whom  it  guardians,  &c. 
shall  be  referred,  then  the  court  may  refer  it  to  the  clerk  or  any  "^P"!^  motion 

,  T  ,  ■'  ,     ,  ,  •'  at  ttre  appear- 

other  person  ;  and  such  person,  persons  or  clerk,  to  whom  any  anee  term,  a 

reference  shall  be  made  under  this  act,  shall  take  an  account,  under  f^^^'^^"'^*  "^'^y 
the  same  rules,  regulations  and  restrictions  as  are  now  provided  have  an  account 
for  taking  an  account  in  a  court  of  equity,  whose  report,  when  con~  ^^^^^^i- 
firmed  by  said  court,  shall  be  conclusive  evidence  of  the  amount  of 
the  plaintiff's  demand  only  as  against  the  then  parties  ;  and.  it  shall 
be  the  duty  of  the  court  to  make  an  allowance  for  taking  such  ac- 
count, in  the  same  manner  as  is  now  done  in  courts  of  equity,  which 
allowance  shall  be  paid  by  the  plaintiff,   or   defendant,  or  both,  as 
the  court  in  its  discretion  may  direct. 

120.  In  all  causes  in  the  superior  courts,  whether  civil  or  crim- ^"y  •^^"s?  *" 
inal,  in  which  it  shall  be  suggested,  on  oath  or  affirmation,  on  be-  court,  either  ci- 
half  of  the  State  or  the  traverser  of  the  bill  of  indictment  or  of  the^^  °bc7imird 
plaintiffs  or   defendants   in   said   causes,  that   there   are   probable  on  affidavit  to 
grounds  that  justice  cannot  be  obtained   in  the   county  in   which  ^'^  adjoining 
said   causes  shall  be  pending,  then  and  in  that  case  the  judge  of 

said  court  is  hereby  authorized  to  order  a  copy  of  the  record  of 
said  cause  to  be  removed  to  some  adjacent  county  for  trial.  Pro- 
vided^ that  no  cause  shall  be  removed  on  oath  or  affirmation,  un- 
less the  oath  or  affirmation  set  forth  the  facts,  whereon  the  depo- 
nent or  affirmant  founds  his  belief  that  justice  cannot  be  obtained 
in  the  county,  wherein  the  suit  is  pending,  so  that  the  judge  may 
decide  upon  such  facts  whether  the  behef  is  well  grounded. 

121.  The  parties   to  any  suit,  in  any  of  the  superior  courts  of  The  parties  to 
law  and  equity  within  this  State,  may  remove  such  suit,  by  consent,  remove  the^^ 
for  trial  to  any  convenient  county,  which  removal  by  consent  shall  same  to  an 

be   entered  of  record,  and   thereupon  it  shall   be  the  duty  of  the^y^by"cons*enT" 
clerk  to  transfer  the  papers  relating  to  such  suit  in  like   manner  as 

117.  17  Chas.  2,  c.  8,  s.  1. 

118.  17  Chas,  2,  c.  8,  s.  2. 

119.  1826,  c.  2. 

120.  1806,  c.  693,  s.  12.— 1821,  c.  1094.— ISOS,  c.  745. 

121.  1813j  c.  853. 


172  COURTS,  COUNTY  AND  SUPERIOR.   [ChAP.  XXXI. 

prescribed  for  the  removal  of  causes  on  affidavit  of  either  parly, 

and  the  court  to  which  such  suit  shall  be  removed  shall  have  full 

power  and  authority  to  proceed  to  hear  and  determine  the  same  as 

fully  as  if  the  same  had  been  originally  commenced  in  such  coml. 

Upon  the  re-         122.   Whenever  any  suit  shall  be  directed  to  be  removed  from 

cause,  the  clerk  any  of  the  superior  courts  agreeably  to  the  above  sections  of  this 

to  send  a  tran-  a^t    [^  gj^g]}  ]^q  tjjg  duty  of  the  clerk  to  transmit  a  transcript  of  the 

script,  tosether         ',».,.  •',  i  •    i       i  •       i-  i 

with  the  depo-  record  oi   said  suit  to  the  court,  to  which  the  same  is  directed  to 
^i/i°ii?'  ^^.-       be  transmitted,  together  with  any  depositions  or  other  written  evi- 

JI16CI   L116r61Il(  -|  1*1  1/^111  * 

dences  which  may  be  riled  therein. 
Cause  to  be  re-      123.  When  any  application  shall  be  made  to  remove  any  cause, 
davlt*^  T  ***'  whether  civil  or  criminal,    to  an  adjacent  county  for  trial,   which 
than  twice.       cause  shall  have   been  before  removed,  it  shall  be  the  duty  of  the 
person  so  applying  to  set  forth  on  affidavit  particularly  and  in  de- 
tail the  grounds  of  such  application,  and  the  presiding  judge  may 
in  his  discretion  remove  the  same  to  any  adjacent  county  for  trial. 
Provided,  that  no  cause  under  any  circumstances  shall  be  removed 
more  than  twice. 
In  suits involv-      124.   In  all  suits  in  the  county  and  superior  courts,  wherein  the 
boundary,°the°  title  or    bounds  of  lands  shall  come  in  question,  if  it  shall  appear 
court  may  or-   to  the  court  necessary,  such  court  may   order  two  surveyors,  one 
era  survey.    ^^  ^^  named  by  each  party,  to  attend  and  run  out  the  lands  in  dis- 
ttiereupon.        pute,  agreeably  to  the  bounds  and  hues  expressed  in  each  party's 
,  titles,  and  make  three  accurate  plans  of  such  surveys,  and  return  the 

same  to  such  court  ;   which  order  such  surveyors  are  required   to 
obey,  and  the  allowance  for  the  service  rendered  is  to  be  taxed  in 
the  bill  of  costs  and  paid  by  the   party  cast.     Provided  neverthe- 
less, if  the  parties  shall  agree  to  have  but  one  surveyor  appointed 
to  perform   such  services,   that  then  and  in  such  cases  the  court 
shall  order  one   surveyor  only  to  attend,   survey  and  run  out  the 
lands  in  dispute,  who  shall  return  three  plans  in  the  same  manner, 
and  be  entitled  to  the  same  allowance,  as  he  would  have  been  enti- 
tled to  if  two  surveyors  had  been  appointed. 
Clerk  not  to  af-      125.   In  all  cases   where  the   clerk  of  the   superior   or   county 
fix  the  seal  of  court  issues  proccss   to  the  county  of  which  he  is  clerk,  it  shall 
process  to  be    not  be  necessary  for  him  to  annex  the  seal  of  his  office  thereto, 
executed  with-  and  if  any  such  seal  should  be  notwithstanding   annexed,  it  shall 

m  the  county.  i       1       c  i  •  1  •       1       i  -n      p  /•        i 

not  be  lawiulto  raise  any  charge  in  the  bill  01  costs  lor  the  same. 
SheriiT,  &c.  to        126.   It  shall  be  the  duty  of  the  sheriff  of  every  county,  by  him- 
serve  all  no-      gg]|-  ^j.  j^jg  j^wful  deputy,  to  scrvc  all  notices  that  may  be  tendered 
be  necessary  in  or  delivered  to  him,  or  that  are  or  may  be  required  to  be  given,  in 
kfaworeq^tv  ^^^  cause,  motion  or  proceeding,  either  at  law  or  in  equity,  as  well 
for  commencing  as  for  proceeding  in  the  same  until  the  same  shall 
be  ended  ;   and  in  case  the   sheriff  of  any  county,  in  which  such 
notice  is  to  be  served,  shall  be  a  party  or  interested  in  the  pro- 
ceedings aforesaid,  then  it  shall  be  the  duty  of  the  coroner  of  the 
county,  for  which  said    sheriff  was  appointed,   to  serve  all  such 
notices  that  are  to  him  tendered  or  delivered. 

122.  1806,  c.  694,  s.  12.— 1810,  C.  787. 

123.  1822,  c.  1130,  s.  1. 

124.  1779,  c.  157,  s.  7.— 1786,  c.  252,  s.  1  and  2. 

125.  1797,  C.  474,  s.  5. 

126.  1827,  c.  20,  s.  1.— 1815,  c.  888,  s.  1.— 1816,  c.  902,  s.  1. 


Chap.  XXXI.]  courts,  county  and  superior.  173 

127.  The  said  officers  shall  serve  the  same  by  delivering  a  true  How  notices  to 
copy  thereof  to  the  person,  to  whom  the  same  shall  be  directed,  if '^'^  served. 

he  be  found  in  his  county,  or  by  leaving  a  copy  thereof  at  the  usual 
place  of  abode  of  such  person  if  in  his  county,  and  shall  certify  on 
the  notice  the  time  when  said  notice  was  served  or  copy  left  at  the 
place  of  abode  ;  and  such  return  shall  be  evidence  of  the  service 
of  the  said  notice  as  may  be  therein  stated,  and  the  said  officers 
shall  deliver  respectively  the  said  notice  with  his  return  to  the 
party,  his  attorney  or  agent,  at  whose  instance  such  notice  issued, 
upon  demand  of  the  same. 

128.  Any  sheriff  or  coroner,  neglecting  to  execute  and  return  f^'^'^^.^y  °".°/' 

J  ^  -^        o  o  _  iicer  tor  la.iiin'^ 

such  notice,  or  making  a  false  return  thereon,  shall  be  subject   to  to  serve  notices 
the  same  action  and  penalties  as   for  neglecting  to  serve  or  falsely  or  making  a 

L  _  cj  *j  J   icilSB  rGiurn, 

returning  process,  directed  to  him  from  the  superior  courts  of  law 
of  this  State,  to  be  prosecuted,  recovered  and  applied  as  actions  and 
penalties  are  directed  to  be  prosecuted,  recovered  and  applied,  for 
neglecting  to  serve  or  falsely  returning  process  issued  from  the 
superior  courts  of  this  State. 

129.  Provided^  that  nothing  herein  contained  shall  prevent  any  Notice  may  be 
person  from  giving  notice  and   proving  the  same   as   heretofore  ^J.^^g^^^g  j^^j.^, 
directed.  tofore. 

130.  When   any  scire  facias  shall  issue  to  the  sheriff  of  any  The  return  of  a 
county  within  this    State,  the  return  of  the  sheriff  thereon  that  the  ^^^nff  on  a 
same  has  been  executed  shall  be  deemed  sufficient  evidence  of  the  that  he  has  ex- 
service  of  such  scire  facias,  and  it  shall  not  be  held  necessary  that  ^'^'i^*^'? '^."^  ^'^'^^ 

\j  '  J  surficicnt  GV- 

the  same  should  be  made  known  in  the  presence  of  witnesses.  idence  of  the 

131.  At  the  trial  of  all  actions  at  law  upon  contract,  it  shall  be  ***^''^i'=^- 
competent  for  either  of  the  defendants  to  shew  in  evidence  that  he,  on  trLrmav"^' 
she  or  they,  is  or  are  surety  or  sureties,  and  if  it  be  satisfactorily  shew  that  they 
shown,  it  shall  be  the  duty  of  the  jury  in  their  verdict,  or  of  the  the  jury  or  jus- 
justice  of  the  peace  in  his  judgment,  to  discriminate  the  principal  tice  to  discrim- 
and  surety,  which  shall  be  endorsed  on  the  execution  by  the  clerk  c"pai  fi-oin"he 
or  justice  of  the  peace  issuing  it.  sureties. 

132.  When   any  execution  endorsed  as    aforesaid  shall   come  in  such  case 
into  the  hands  of  any  officer  for  collection,  it  shall  be  his  duty   to  J^l^'^^Jig^'lj^^^^g 
levy  the   same  on  the  goods  and  chattels  and  lands  and  tenements  property  of  the 
of  the  principal,  or  so  much  thereof  as  shall  be  necessary  to  satisfy  P^"^""?*^!'  ^'^• 
said  execution,  and  for  want  of  such  sufficient  property  of  the  prin- 
cipal, also  on  the  goods  and  chattels,  lands  and  tenements  of  the 

surety  or  sureties,  and  make  sale  thereof  as  the  law  does  or  may 
direct;  Provided,   nevertheless,  that  in  all  such  levies  a  sale  shall  ^''"Pf^y,  "f^l",® 
first  be  had  on  all  the  property  of  the  principal  levied  on,   before  be  "first  sold. 
that  of  the  surety  or  sureties. 

133.  Whenever  any  suit  shall  be  brought  in  any  of  said  courts,  A  judgment  for 
in  which  security  shall  be  given  for  the  prosecution  of  the  suit,  or  be'^^ven  ""^^ 
when  any  case  shall  be  brought  up  to  any  of  said  courts  by  an  ap-  fpinst  the 
peal  from  the  county  courts  or  otherwise,  in  which  a  bond  for  the  the'suretfe"  to 

127.  1827,  c.  20,  s.  3. 

128.  1827,  c.  20,  s.  4.— 1315,  C.  883,  s.  2. 

129.  1S27,  c  20,  s  6.— 1815,  c.  888,  s.  4. 

130.  1799,  c.  537. 

131.  1820,  c.  31.  s.  1. 

132.  1S2G,  c.  31,  s.  2. 

133  ls:ji,  c.  46,  s.  1  and  2. 


cess. 


174  COURTS,  COUNTY  AND  SUPERIOR.   [ChAP.  XXXI. 

his  prosecution  prosecution  of  the  suit  shall  have  been  given  in  the  court  below, 
faHing^o'pros-  *"^  judgment  shall  be  given  in  the  superior  court  against  the  plain- 
ecute  with  sue-  tiff  for  the  costs  of  the  defendant  or  defendants,  it  shall  be  the  duty 
of  the  court,  upon  motion  of  the  defendant,  also  to  give  judgment 
against  the  surety  for  the  prosecution,  for  said  costs,  whereupon 
execution  shall  issue  jointly  against  the  plaintiff  and  his  security. 
A  defendant  134.   It  shall  and  may  be  lawful  for  the  defendant  or  defendants, 

fud^meiu  is™  against  whom  any  final  judgment  or  decree  for  the  payment  of 
rendered  may  money  shall  or  may  be  rendered  or  made  by  any  court  of  record 
?o ^he  clerk"be- ^"  ^^^^^  State,  to  pay  the  whole  or  any  part  of  the  judgment  or  de- 
fore  execution  cree  to  the  clerk  of  the  court,  in  which  said  judgment  or  decree 
issues.  gj^^ji  ^^  ^^^^  ^^  rendered  or  made,  at  any  time  after  the  rendering 

of  such  judgment  or  the  making  of  such  decree,  although  no  exe- 
cution shall  or  may  have  issued  to  enforce  the  payment  of  such 
judgment  or  decree  ;  and  such  payment  of  money  shall  be  as  good 
and  available  to   the   party  making  the   same,  as  if  made   to  the 
sheriff  or  other  legal  officer,  under  and  by  virtue  of  an  execution 
issued  on  such  judgment  or  decree. 
Clerk  to  pay         135.   The  clerks  of  courts  of  record,  to  whom  any  money  shall 
over  the  same    or  may  be  paid  to  satisfy,  in  whole  or  in  part,  any  final  judgment 
titled  to  receive  or  decree,  shall  pay  the  same  to  the  party  or  parties  entitled  to  re- 
^'-  ceive  the  same,  under  the  same  rules  and  penalties,  as  if  the  same 

had  been  paid  into  his  office  under  and  by  virtue  of  an  execution 
issued  on  such  final  judgment  or  decree. 
Judge  how  to         136.   It  shall  not  be  lawful  for  any  judge,  in  delivering  a  charge 
charge  to^the    ^°  ^^•'®  P^tit  jury,  to  give  an  opinion  whether  a  fact  is  fully  or  suf- 
jury.  ficiently  proved,  such  matter  being  the  true  office  and  province  of 

the  jury  ;  but  it  is  hereby  declared  to  be  the  duty  of  the  judge,  in 
such  cases  to  state,  in  a  full  and  correct  manner,  the  facts  given  in 
evidence,  and  to  declare  and  explain  the  law  arising  thereon. 
Quakers  may  137.  It  shall  be  lawful  for  the  people  called  Quakers  to  wear 
their  hats,  as  well  in  courts  of  judicature  as  elsewhere,  unless 
otherwise  ordered  by  the  court.  /<r5  ?-   ^     (^Ji  //•  /J    /<^'  / 

134.  1823,  c.  1212,  s.  1.  /T^^J'/-  CA.  lO,  /IV^-/ >,    lO  -^^ 

135.  1823,  c.  1212,  s.  2,  ,  a- 1    ^    "i  nJ.     i  6    a.    ^       ,  r^ 

136.  1796,0.  4.52,  s.  1.  ^  ^^  ^"^  C^  J i  ■  "l  ^ .   /V-    /j.     -   ^  ^. 

137.  1784,  c.  209.  /  ?  ^^- :^  ^  QTL   ^  -     f.     /O-      /  1 .  //^  •  Z  2  •  5  J 

Note- — REFEnENCEs  TO  Adjudged  Cases. 

Sect.  26.  Sheepshanks  tJs   Jones,  2  Hawks.  211. 

Sect.  30.  State  vs.  Hogg,  2  Murph.  319 

Sect.  39.  Green  vs.  Mangum,  3  Murph.  39.  The  Yadkin  Nav.  Co.  against  Benton, 
1  Hawks,  422. 

Sect.  42.  Allen  vs.  Stokes,  1  Hay  122. 

Sect.  44.  Muyr  »s.  Mallett,  2  Hay.  137.  Tyler  vs.  Person,  1  Murph.  498.  Wilson 
vs.  Hudspeth,  3  Dev.  57       Brittain  iw.  Howell,  2  Dev.  and  Bat. 

Sect.  47.  Mc'Clenahan  vs.  Thomas,  2  Murph.  247.     Clark  vs.  Dupree,  2  Dev.  411. 

Sect.  50.  Rise  vs.  Hayworth,  4  Dev.  584. 

Sect.  62.  Anderson  vs.  Anderson,  Martin,  19. 

Sect.  63.  Chambers  vs.  Wilherspoon,  3  Hawks,  42. 

Sect.  69.  Cherry  vs.  Slade,  2  Hawks,  400. 

Sect.  73.  Peace  vs.  Person,  1  Murph.  188. 

Sect.  75.  Moore  vs.  Islar,  Martin,  78.  Thompson  vs.  Hodges,  3  Hawks,  318.    . 

Sect.  7G.  Anon.  2  Hay.  133.  Bird  vs.  Rouse,  1  Car.  Kepos.  334.  Carpenter  vs. 
Taylor,  N.  C.  Term  R.  265. 


wear  their  hats 
in  court 


Chap.  XXXII.]      courts  of  equity. 


175 


Sect.  79.  Stockstill  vs.  ShufFord,  1  Murph.  39.  Arrington.  vs.  Coleman,  ib.  102. 
Welborne  vs.  Gordon,  ib.  502.  Porter  vs.  Know,  1  Car.  R.  521.  Superior  Court  ofiice 
vs.  Lockman,  1  Dev.  146.     Darden  vs.  Maget,  1  Dev.  and  Bat.  498. 

Sect.  80.  Hogg  vs.  Ashe,  1  Hay,  471.  Moore  vs.  Jones,  1  Murph.  353.  Worth  vs. 
Pentress,  1  Dev.  419. 

Sect.  90.  Brown  vs.  Clancey,  1  Hay.  107.  Davis  vs.  Wilkerson,  ib.  334.  Smith  vs. 
Kagan,  2.  Dev.  299. 

Sect.  92.  Anderson  vs.  Hunt  1  Dev.  298. 

Sect.  95.  Deloath  vs  Worke,3  Hav/ks,  36. 

Sect.  102.  Howet  w.  Alexander,  1  Dev.  431. 

Sect.  112.  Erwin  vs.  Arthur,  Conf.  490. 

Sect.  120.  Smith  vs.  Osier,  1  Car.  Repos.  518.     Knowis  vs.  Baker,  2  Car.  R.  98. 

Sect.  122.   State  vs.  Collins,  3  Dev.  117. 

Sect.  123.  State  i's.  Lewis,  3  Hawks,  410. 

Sect.  125.  Governor  vs.  Mc'Rae,  3  Hawks,  226.  Seawell  vs.  Bank  of  Cape  Fear,  3 
Dev.  279. 

Sect.  136.  Orliison  I's.  Morrison,  3  Murph.  551.  State  vs.  Greenlee,  ib.  556.  Sneed 
vs.  Creath,  1  Hawks,  309.  Reel  vs.  Reel,  2  Hawks,  63.  Mc'Neil  vs.  Massey,  3  Hawks, 
91.  State  vs.  Morris,  3  Hawks,  388.  Reid  vs.  Shank,  2  Dev.  415.  State  vs.  Moses,  2 
Dev.  452.  State  vs.  Lipsey,  3  Dev.  485.  State  vs.  Davis,  4  Dev.  612.  State  vs.  May.  ib.  328. 


CHAPTER  32. 


COUMTS    OF    EQ.UITY. 


AN  ACT  CONCERNING  COURTS  OF  EQUITY, 


Section 

1.  Courts  of  equity  established. 

2.  Style  of  the  court. 

3.  Clerk  and  master  to  be  appointed. 

4.  Rules  of  court — Plaintiff  may  file  his 

bill  in  vacation — Capias  to  take  the 
body  of  the  defendants,  when  to 
issue — Form  of  the  writ — Officer's 
duty  in  serving  it — Liable  as  special 
bail  for  taking  an  insufficient  bond, 
or  for  failing  to  take  any  bond — No 
capias  to  issue  against  an  executor, 
administrator  or  heir — Penalty  on 
executor,  &c.  for  not  appearing — 
How  to  proceed  when  there  are  two 
or  more  defendants — Copy  of  the 
bill  and  subpoena  to  be  served  on 
the  defendant  ten  days  before  the 
return  court — Defendant  to  plead, 
answer  or  demur  at  the  return  term, 
or  the  bill  to  be  taken  pro  confesso 
— Defendant  may  show  cause  with- 
in the  three  first  days  of  the  ensu- 
ing term — Court  to  order  publication 
to  be  made  when  the  defendant  can- 
not be  found,  or  resides  out  of  the 
State — Publication  how  to  be  made 
—  Upon  publication  being  made 
court  may  grant  plaintiff  a  decree, 
unless  the   defendant  appears  and 


Section 

files  his  answer,  plea  or  demurrer — 
PlaintifTin  case  of  such  decree  to  give 
security  for  the  return  of  property 
— If  such  decree  is  against  a  person 
residing  out  of  the  State,  a  copy  of 
it  must  be  served  on  such  person, 
if  within  two  years  after  the  decree 
he  comes  into  the  State — If  such 
defendant  dies  within  two  years, 
the  copy  to  be  served  on  his  real 
or  personal  representatives — Decree 
to  be  absolute  against  a  person 
served  with  a  copy  and  not  peti- 
tioning for  a  rehearing  within 
twelve  months — Defendant  may  pe- 
tition for  a  rehearing  within  twelve 
months  from  service  of  a  copy,  or 
within  three  years  when  no  copy  of 
the  decree  has  been  served  upon 
him,  and  upon  paying  or  giving  se- 
curity for  the  costs,  may  answer  the 
bill,  &c. — Decree  in  such  case  to  be 
final,  if  no  petition  for  rehearing  is 
filed  within  three  years— Such  de- 
cree not  to  be  made  against  a  person 
residing  out  of  the  State  unless  the 
bill  is  founded  on  transactions  which 
took  place  in  this  State— Commis- 
sions to  take  testimony  to  issue — 


176 


COURTS    OF    EQUITY.         [ChAP.  XXXII. 


Section 

— Twenty  days  notice  to  be  given, 
unless  a  longer  or  shorter  time  is 
ordered  by  the  court— Commissions 
may  also  issue  to  take  the  answer, 
&c.  of  the  defendant — Judge  may 
issue  such  commissions  in  vacation, 
or  may  himself  examine  testimony, 
&c.— May  also  grant  injunctions 
and. issue  writs  of  ne  exeat — Court 
may  direct  the  trial  of  such  issues 
as  it  thinks  necessary—Court's  pow- 
er as  to  costs — as  to  requiring  secu- 
rity from  the  defendant — and  as  to 
issuing  process  to  enforce  its  de- 
crees. 

5.  Sheriffs  to  serve  notices  issuing  from 

clerks  and  masters. 

6.  Executions  may  issue  as  at  law — and 

have  the  like  binding  effect. 

7.  A  decree  for  the  costs  of  the  defen- 

dant may  be  given  against  the  sure- 
ty for  the  prosecution  as  well  as 
against  the  principal. 

8.  In  case  of  defendant's   death   after 

service,  a  sci.  fa.  may  issue  to  make 
his  representatives  parties. 

9.  When  plaintiff  dies  his  representa- 

tives may  make  themselves  parties 
within  two  terms  thereafter. 
10.  No  bill,  answer,  &c.  to  be  enrolled 


Section 
till 


11 


12 


13 


14 


final    decree — Court  to   direct 
what  papers  to  be  enrolled. 

No  injunction  to  stay  an  execution 
shall  issue  for  a  greater  sum  than 
plaintiff  swears  to  be  just,  nor  until 
after  security  given. 

No  injunction  to  issue  after  four 
months  from  the  judgment  at  law, 
except  in  certain  cases. 

Injunction  bonds,  after  dissolution  of 
the  injunction,  to  be  proceeded  on 
like  appeal  bonds. 

In  what  cases  injunctions  to  stay  ex- 
ecution on  behalf  of  the  State  will 
be  allowed. 

Court  to  appoint  a  guardian  for  infant 
or  non  compos  defendant  residing 
out  of  the  State — Such  infant,  &c. 
to  have  three  years  after  the  de- 
cree to  appear  in  court,  &c. 

Cause  may,  after  it  is  set  for  hear- 
ing, be  removed  to  the  supreme 
court. 

.Time  within  which  bills  of  review 
and  petitions  for  rehearing  shall 
lie  or  be  allowed. 
18.  Clerk  and  master  to  make  title  to 
property  sold  under  an  order  of  the 
court. 


16 


17 


/^U^.    &^-  ^^rSO 


Courts  of  equi- 
ty established. 


Style  of  the 
court. 

Clerk  and  mas- 
ter to  be  ap- 
pointed. 

Rules  of  court 

Plaintiff  may 
file  his  bill  in 
vacation . 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  ofJ^orth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  each  superior  court  of  law  within  this  State  shall  also  be  and 
act  as  a  court  of  equity  for  the  same  county,  and  possess  all  the 
powers  and  authorhies  within  the  same  that  the  court  of  chancery, 
which  was  formerly  held  in  this  State  under  the  colonial  govern- 
ment, used  and  exercised,  and  that  are  properly  and  rightfully  inci- 
dent to  such  a  court  agreeably  to  the  laws  in  force  in  this  State. 

2.  Such  court,  in  all  equity  proceedings,  shall  be  styled  and 
called  the  court  of  equity  for  the  county  in  which  it  is  held. 

3.  The  judges  of  said  courts  of  equity  shall  appoint  some  per- 
son of  skill  and  probity  to  act  as  clerk  and  master  in  equity  to  each 
of  said  courts. 

4.  The  rules  and  methods  of  proceeding  in  said  courts  shall  be 
as  follows,  to  wit  :  The  plaintiff  may  file  his  bill  in  the  clerk's  of- 
fice, either  during  term  time  or  in  the  vacation,  and  thereupon  the 
clerk  shall  issue  a  writ  of  subpoena  as  is  usual  in  cases  in  chancery, 
and  when  the  plaintiff  shall  specially  state  his  debt  or  damages  and 
make  oath  or  affirmation  thereto,  either  before  one  of  the  judges 


1.  1782,  c.  177,  s.  2.— 1806,  c.  693. 

2.  1787,  c.  278,  s.  4.— 1732,  c.  177,  s.  4. 

3.  1787.  c.  278,  s.  3.— 1806,  c.  693,  s.  10. 

4.  1782,  c.  177,  s.  3.— 1787,  c.  276,  s.  1.— 1789,  c.  314,  s  1  and  5. 
C.  278,  s.  1.— 1823,  c.  1213. 


-1833,  c.  8.-1787, 


Chap.  XXXIL]      courts  of  equity.  177 

of  the  superior  courts  of  law  and  equity,   or  before  one  of  the  Capias  to  take 
judges  of  the  supreme  court,   or  before   the   clerk  and  master  in  defendant"^  ^^^ 
equity,  the  said  clerk  shall,  together  with  the  subpoena,  issue  a  writ  when  to  issue. 
directed  to  the  sheriff  of  the  county,  where  the  defendant  is  sup- 
posed to  be  a  resident,  as  follows,  to  wit :  The    State   of  North 
Carohna  to  the  sheriff  of  county,  greeting. 

You  are  hereby  commanded  to  take  the  body  of  Form  of  the 

late  of  your  county,  (if  to  be  found  in  your  coun-  '*^"'' 
ty,)  and  him  safely  keep  so  that  you  have  him  before  the  judges  of  . 
the  superior  court  of  law  and  equity  for  the  county  of 
at  the  town  of  on  the  day  of 

next,  or  till  he  shall  give  you  good  and  sufficient  secu- 
rity in  the  sum  of  dollars,  (which  sum  is  hereby 
directed  to  be  double  the  damages  suggested  on  oath  in  the  bill,) 
to  appear  and  answer  at  the  said  court  on  the  day  aforesaid  to  a 
bill  in  equity  filed  against  him  by  and  this 
you  shall  in  no  wise  omit  at  your  peril.     Witness 

clerk  and  master  of  the  said  court  at 
the  day  of  in  the 

year  of  the  independence  of  the  State. — Which  writ  the  sheriff  is  Pfficer;s  duty 
hereby  directed  and  required  to   obey  ;  and  when  any  such  writ  ^^  ^^^  ^"^  ^ ' 
shall  issue  to  any  sheriff  or  other  officer,  such  sheriff  or  other  of- 
ficer shall  not  only  be  liable  as  special  bail  for  taking  an  insufficient  Liable  as  spe- 
bond,  on  exception  taken  and  entered  the  same  term  to  which  such  "^^.j^^^j^"?^ 
process  shall  be  returnable,  the  sheriff  or  other  officer  having  due  sufficient  bond, 
notice  thereof;  but  such  sheriff  or  other  officer  shall  also  be  liable  °'^/°'j^^^^'^^^^j|° 
as  special  bail  for  faihng  or  neglecting  to  take  from  such  person  or 
persons,  arrested  by  virtue  of  such  writ,  a  bond  with  two  suffi- 
cient securities  in  double  the  sum  for  which  such  person  or  persons 
shall  be  arrested,  and  proceedings  shall  be  had  against  him  under 
the  same  rules,  regulations  and  restrictions  as  in  such  cases  in  ac- 
tions at  law:  Provided,  that  no  such  writ  shall  issue  against  an  ex- 
ecutor, administrator  or  heir  at  law  who  is   sued  as  such,  but  the  No  capias  to 
process  against  them  and  each  of  them  shall  be  by  a  writ  of  sub-  an  exe^ulor^^ 
poena,  as  usual  in  other  cases  of  chancery,  and  the  penalty  for  not  administrator 
attending  shall  be  two  hundred  dollars,  but  the  said  penalty  shall  ""^   ^l^' 

•  •  ..  y  X  Gnsiltv  on.  GX- 

not  be  levied  nor  final  judgment  given,  until  the  term  ensuing  that  ecutor,  &.c.  for 
to  which  the  suit  is  returnable,  nor  without  a  scire  facias  having  ^°^  ^PP^^""S- 
been  duly  served  and  proof  thereof  made  to  the  satisfaction  of  the 
court,  as  in  cases  at  law  where  scire  facias  is  required;  and  where 
any  other  person  is  made  a  defendant,  together  with  such  execu- 
tor, administrator  or  heir  at  law  as  aforesaid,  a  capias  may  issue  as 
above  against  such  other  person,  and  a  writ  of  subpoena  against  such 
executor,  administrator  or  heir  at  law  ;  and  in  all  cases  where 
there  are  two  or  more  defendants,  the  plaintiff  may  issue  subpoe- 
nas,  directed  to  the   sheriff  or  coroner  of  each  of  the  counties  ^°7  ^l P"""' 

'  ,  CG6CI  WflGIl 

where  the  defendants  are  most  likely  to  be  found,  noting  on  each  there  are  two 
process  that  they   are  issued  in  the  same  suit,  and  when  the  same  °^  '^"'^^  defea- 
are  returned  they  shall  be  docketed  as  if  only  one  had  issued;  and 
in  case  any  defendant  should  not  be  served  with  such  process,  the 
VOL.   I.  23 


178  COURTS    OF   EQUITY.        [ChAP.  XXXII. 

same  proceedings  shall  be  had  as  in  cases  of  other  similar  process 

which  has  not  been  executed. 
C  Dv  f  th  ^^  ^^^^^  ^^^^^^  ^^  served  by  the  sheriff,  unless  he  has   a  copy  of 

bill  and  subpoe- the  bill  ready  to  dehver  the  defendant ;  he  is  hereby  required  to 
na  to  be  served  (jgijygp  ^jjg   Said   coDv  immediately  after  the  service   of  the  said 

on  the  aelend,-  *-^,  ,  '^ 

ant  ten  days     Writ,  nor  shall  any  service  be  vahd,  unless  it  be  made  at  least  ten 
before  the  re-   (jjjyg  before  the  term  at  which  the  defendant  is  required  to  appear  ; 
and  where  the  service  is  by  subpoena,  the  defendant  shall  be  serv- 
ed with  a  copy  of  the  bill  at  least  ten  days  before  such  term  ;  on 
failure  of  any  of  which  requisitions  the  defendant  may  plead  the 
matter  in  abatement  and  the  bill  shall  be  dismissed. 
Defendant  to        Upon  such  Writ  or  subpoena  being  duly  served  and  a  copy  of 
or^demur^at^'^   the  bill  idehvered  in  proper  time,  proof  being  made  to  the  satisfac- 
the  return        tion  of  the  court  by  the  return  of  the  sheriff  or  by  affidavit,   the 
biirto°be  taken  defendant  shall  appear  and  put  in  his  answer  or  plea,  agreeably  to 
■pro  cmfesso.     the  pr.actice  in  chancery,  or  demur,  or  on  failure  thereof  the  plain- 
tiff's bill  shall  be  taken  pro  confcsso,  and  appointed  to  be  heard 
Defendant  may  g^  mrte  at  the  ensuing  term.     Provided,  that  if,  within  the  three 
within  the        first  days  of  the  ensuing  term,  the  defendant  shall  offer  any  satis- 
^f'^th^'^^'  '^^y®  factory  reason  to  the  court  for  his  not  appearing  at  the  first  term, 
term.  °  the  order  for  the  bill  being  taken  pro  confesso  and  heard  ex  parte 

may  be  discharged,  and  the  defendant  then  admitted  to  plead,  an- 
swer or  demur  ;  and  such  time  shall  be  allowed  in  this  as  well  as 
in  all  other  cases  for  the  pleadings   on  both  sides,   and  such  day 
appointed  for  the  hearing,  as  the   court  shall  direct  ;  and  if  any 
defendant  or  defendants,  against  whom  any  subpoena  or  other  pro- 
cess shall  issue,  shall  not  cause  his,  her  or  their  appearance  to  be 
entered  on  such  process,  within  such  time  and  in  such  manner,  as, 
according  to  the  rules  of  the  court,  the  same   ought  to  have  been 
entered,  in  case  such  process  had  been  duly  served,  and  an  affidavit 
or  affidavits  shall  be  made  to  the  satisfaction  of  the  court  that  such 
Court  to  order  defendant  or  defendants  resides  or  reside  beyond  the  limits  of  the 
publication  to    gtate,  or  that,   upon  inquiry  at  his,   her  or  their  usual  place  of 
the  defendant    abode,  he,  she  or  they  could  not  be  found,  so  as  to  be  served  with 
cannotbe  found  gypjj  pj.Qgggg    p^(j  ^]^^j  there  is  iust   ground  to  believe  that  such 

or  resides  out  -^  «/  o 

of  the  State,  defendant  or  defendants  is  or  are  gone  without  the  limits  of  the 
State,  or  otherwise  absconded  to  avoid  being  served  with  the  pro- 
cess of  such  court,  then  and  in  such  cases,  the  court,  out  of  Avhich 
such  process  issued,  may  make  an  order,  directing  and  appointing 
such  defendant  or  defendants  to  appear  at  a  certain  day  therein  to 
be  named,  and  in  cases  where  such  defendant  or  defendants  resides 
or  reside  without  the  limits  of  the  State,  a  copy  of  such  order 
shall,  within  sixty  days  after  such  order  made,  be  inserted  in  some 
Publication  gazette  regularly  pubhshed  within  this  State,  for  such  length  of 
niade^°  ^^  ^^^^  ^^  ^^^^  court  may  order  and  direct,  and  they  may  when  they 
shall  think  necessary  direct  such  order  to  be  inserted  in  any  ga- 
zette of  the  United  States  ;  and  in  cases  where  such  defendant  or 
defendants  shall  have  withdrawn  him,  her  or  themselves  beyond 
the  limits  of  the  State,  or  otherwise  absconded  to  avoid  the  service 
of  such  process,  a  copy  of  such  order  shall,  within  sixty  days  after 
such  order  made,  be   inserted  in  some  gazette  regularly  published 


Chap.  XXXII. ]      courts  of  equity.  179 

within  this  State,  for  such  length  of  time  as  the  court  shall  direct, 
and  shall,  within  the  time  aforesaid,  be  posted  up   at  the  door  of 
the  court  house,  where  such  order  shall  be  made,  and  also  in  some 
pubhc  place  within  the  county,  where  such  defendant  or  defendants 
respectively  made  his,  her  or  their  usual  abode,  within  thirty  days 
next  before  such  his,  her  or  their  absenting  ;  and  if  the  defendant  or  Upon  publi- 
defendants  do  not  appear  within  the  time  limited  by  such  order,  or  ^^^^  ^^"^1 
within  such  further  time  as  the  court  shall  appoint,  then,  on   proof  may  grant 
made  of  such  publication  of  such  order  as  aforesaid,   the  court,  cree"unkss 
being  satisfied  of  the  truth  thereof,  may  order  the  plaintiff's  bill  to  the  defendant 
be  taken  pro  confesso,  and   make  decree  thereupon  as   shall  be  ^PP*^^"^®" 
thought  just,  and  may  thereupon  issue  process,  as  in  other  cases, 
to  compel  the  performance  of  the  decree  either  by  execution,  as 
hereinafter  provided,    to  satisfy  the  demands  of  the  plaintiff"  or 
plaintitFs  in  the  said  suit,  or  by  causing  the  possession  of  the  estate 
and  effects  demanded  by  the  bill  to  be  delivered  to  the  plaintiff  or 
plaintiffs,   or  otherwise   as  the   nature  of  the  case   may   require. 
First,  Provided,  nevertheless,  that  such  plaintiff'  or  plaintiffs  shall  Pl^i'i'^j.^) iii 
first  give  sufficient  security,   in  such  sum  as  the  court  shall  think  decree,  to  give 
proper,  to  abide  such  order,  touching  the  restitution  of  such  estate  security  for  the 
or  effects,  as  the  court  shall  think  proper  to  make  concerning  the  erty. 
same,  upon  the  defendant  or  defendants  appearing  and  petitioning 
to  have  the  said  cause  reheard,  and  paying  such  costs  to  the  plain- 
tiff or  plaintiffs  as  the  court   shall  order.      Secondly,   that  if  any  if  such  decree 
decree  shall  be  made,  in  pursuance  of  this  act,  against  any  person  p^ersonTesiding 
or  persons  residing  without  the  limits  of  the  State  at  the  time  such  out  of  the 
decree  is  pronounced,  and  such  person  or  persons  shall,  within  ofVmust'^e 
two  years  after  making  such  decree,  reside  within  the   State,  or  served  on  such . 
become  pubUcly  visible  therein,   then,   and  in   such  case,  he,  she  f"two'  years 
or  they  shall  likewise  be  served  with  a  copy  of  such  decree,  within  after  the  de- 
a  reasonable  time  after  his,  her  or  their  coming  into  the  State,  or  into'the  State, 
their  pubhc  appearance  shall  be  known  to  the  plaintiff  or  plaintiffs  ; 
and  in  case  any  defendant  or  defendants,  against  whom  such  decree  If  such  defend- 
shall  be  made,  shall,  within  two  years  after  the  making  of  such  de-  two  years,  the 
cree,  happen  to  die    before  his  or    her  comine    into  the   State,  copy  to  be 

^.^  ,  „  .  ,  1     11      •  1  •       1        •         1        1     r        served  on  his 

or  appearing  openly  as  aforesaid,  or  shall  withm  the  time  last  beiore  real  or  personal 
mentioned  die  in  custody  before  his  or  her  being  served  with  a  representatives, 
copy  of  such  decree,  then  the  heir  of  such  defendant  as  shall 
have  any  real  estate,  whereof  possession  shall  have  been  delivered 
to  the  plaintiff"  or  plaintiffs,  if  such  heir  may  be  found,  or  if  such 
heir  shall  be  a  feme  covert,  infant,  or  non  compos  mentis,  the 
husband,  guardian  or  committee  of  such  heir  respectively,  or  if  the 
personal  estate  of  such  defendant  shall  have  been  levied  upon,  or 
possession  thereof  delivered  to  the  plaintiff  or  plaintiffs,  then  his 
or  her  executor  or  administrator,  if  any  such  there  may  be,  may 
and  shall  be  served  with  a  copy  of  such  decree,  within  a  reason- 
able time  after  it  shall  be  known  to  the  plaintiff  or  plaintiffs  that 
the  defendant  is  dead  and  who  is  his  or  her  heir,  executor  or 
administrator  and  where  he,  she  or  they  may  respectively  be  served 
therewith  within  the  State.  Thirdly,  Provided  always,  if  any 
person  or  persons,  so  served  with  a  copy  of  such  decree,  shall  not, 


180  COURTS   OF   EQUITY.        [ChAP.  XXXII. 

Decree  to  be     within  twelve  months  after  such  service,  appear  and  petition  to  have 
againsfa  per-   ^^6  said  cause  reheard,  such  decree  so  made   as   aforesaid   shall 
son  served        stand  absolutely  confirmed  against  the  person  or  persons  so  served 
and  not^peti-     with  a  copy  thereof,  his,  her  or  their  respective  heirs,  executors 
tioning  for  a  re- and    administrators,  and  all  persons  claiming  or  to  claim  by,  from 
?welve^nSths.  o^  under  him,  her   or  them  or  any  of  them,  by  virtue  of  any  act 
done  or  to  be  done  subsequent  to  the  commencement  of  such  suit. 
Defendant  may  Fourthly,   Provided,  nevertheless,  that  if  any  person,   so  served 
r'ehearibg°with-with  a  Copy  of  such  decree,  shall  within  twelve  months  after  such 
in  twelve         service,  or  if  any  person,  not  being  so  served,  shall  within  three 
service^or™     years   next  after  the  making  such  decree,  appear  in   court  and 
copy,  or  with-  petition  to  be  heard  whh  respect  to  the  matters  of  such  decree, 
when  mi^co^py   a"d  shall  pay  down  or  give  security  for  the  payment  of  such  costs 
of  the  decree    as  the  court  shall  think  reasonable  in  that  behalf,  the  person  or 
upon  him,  and  persons  SO  petitioning,  his,  her  or  their  respective  representatives, 
upon  paying  or  or  any  person  claiming  under  him,  her  or  them  respectively,  by 
^rTfe  TOsts  ^  virtue  of  any  act  done  before  the  commencement  of  the  suit,  may 
may  answer     be  admitted  to  answer  the  bill  exhibited,  and  issue  may  be  joined, 
'     "      and  witnesses  on  both  sides  examined,  and  such  other  proceedings, 
decree  and  execution  may  be  had  thereon  as  there  might  have  been 
in  case  the  same  party  had  originally  appeared  and  the  proceedings 
had  then  been  newly  begun,  or  as  if  no  former  decree  or  proceed- 
ings had  been  in  the  same  cause.     Fifthly,  Provided,  nevertheless, 
Decree  in  such  and  be  it  enacted,   that  if  any  person   or  persons,   against  whom 
iT  no  peu^ion^^  ^"c'^  ^6cree  shall  be   made,  his,  her  or  their  heirs,   executors  or 
for  rehearing  is  administrators,  shall  not,  within  three  years  next  after  the  making 
th^eeTears!      of  such  decree,  appear  and  petition  to  have  the  cause  reheard,  and 
pay  down  or  give  security  for  the  payment  of  such  costs,  as  the 
court  shall  think  reasonable  in  that  behalf,  such  decree  made  as 
aforesaid  shall  stand  absolutely  confirmed  against  the  person  and 
persons  against  whom  such  decree  shall  be  made,  his,  her  or  their 
heirs,  executors  and  administrators,  and  against  all  persons  claim- 
ing or  to  claim  by,  from  or  under  him,  her,  them,  or  any  of  them, 
by  virtue  of  any  act   done  or  to  be  done  subsequent  to  the  com- 
mencement of  such  suit ;  and  at  the  end  of  such  three  years  it 
shall  and  may  be  lawful  for  the  court  to  make  such  further  order 
Such  decree      as  shall  be  just  and  reasonable   according  to  the  circumstances  of 
a°ain°st^a  p^r-^^  ^^^  case.      Sixthly,   Provided  ahcays,  that  this  act  shall  not  extend 
son  residing      or  be  construed  to  extend  to  warrant  or  make  good  any  proceed- 
unlefs^the^bil?' ^"§^   against  any  person  residing   without  the    State,  unless   the 
is  founded  on    ground  or  cause  of  action,  or  the  transaction  on  which  the  bill  may 
whicKok^      be  brought,  took  place  within  the  limits  of  the  State. 
j)iace  in  this         Commissions  to  take  testimony  may  issue  directed  to  any  two 
btate.  justices  of  the  peace,  who  shall  have  all  the  powers   of  commis- 

to°t'ake  test?-^  sioners  in  chancery,  and  the  rules  of  proceeding  in'  all  cases  of 
mony  to  issue,  taking  such  testimony  shall  be  conformable  to  the  method  of  pro- 
'^l.icelo^hr  ^^^^i"S  heretofore  observed  in  the  courts  of  chancery  in  this  State  ; 
eiven  unless  a  Provided,  no  such  testimony  shall  be  taken  until  at  least  twenty 
longer  or  short- (jayg  notice  of  the  time  and  place  of  taking  the  same  be  dven  to 

er  time  is  or-       ,  •'  .  r  o  _  11, 

dered  by  the  the  Opposite  party,  unless  the  court  lor  suincient  reason  should  ap- 
court.  point  any  other  limited  time  for  the  notice,  which  they  may  do  in 


Chap.  XXXII.]    courts  of  equity.  181 

all  cases,  either  by  enlarging  or  shortening  the  time  hereby  appoint- 
ed for  taking  such  testimony,  as  the  case  may  require. 

Commissions  may  also  issue   to  any  justice  or  justices  of  the  Commissions 
peace  to  take  the  plea,   answer  or  demurrer  of  a  defendant,  as  is  may  also  issue 
accustomed  in  cases  in  chancery  with  respect  to  commissioners  of  answer,  &c.  of 
chancery,  and  the  said  justice  or  justices  shall  have  all  the  power  the  defendant, 
of  such  commissioners  for  that  purpose. 

Any  one  judge  of  the  court  or  judge  of  the  supreme  court  may  judge  may  is- 
in  the  vacation,  if  it  shall  be  necessary,  grant  such  commissions  as  sue  such  com- 

'.  .  ,.,;;'".  .  ,      missions  in  va- 

are  above  mentioned,  or  may  hunseli  examine  testimony  or  take  cation,  or  may 
the  plea,  answer  or  demurrer  of  the  defendant  in  like  manner  ;  he  himself  exam- 

^  ,  ...  .  /    1      ine  testimony, 

may  also  grant  injunctions   or  ne  exeat^  when  the  necessity  oi  the&c. 
case  will  not  admit  of  a  delay,  but  still  subject  to  the  control  and  May  also  grant 
further  order  of  the  court,  and  no  ne  exeat  shall  issue  where  suffi- ■g^™*^J°^g  p" 
cient  bail  has  been  taken  for  the  party's  appearance.  ne  exeat. 

It  shall  be  the  duty  of  the  said  court  to  direct  the  trial  of  such  Court  may  di- 
issues,  as  to  the  court  may  appear  necessary,   according  to   the  rect  the  trial  of 

•'-*-^  *  '-^  ,       SUCll.  ISSUGS  3.S 

rules  and  practice  in  chancery  in  such  cases  ;  costs  shall  be  paid  it  thinks  nec- 
by  either  party  at  the  discretion  of  the  court.      The  court  may  at  essary. 
any  time  during  the  dependence  of  the  suit  require  further  security  ^g""  ^oJ^gT!'* 
from  a  defendant,  or,  on  failure  thereof,  make  use  of  such  personal  as  to  requiring 
process  as  was  formerly  used  by  the  court  of  chancery  held  in  this  the'defendant 
State  and  deemed  incident  to   the  chancery  jurisdiction  ;  and  the  —  and  as  to  is- 
court  shall  in  all  cases  have  power  to  order  such  process  to  en-  to'enforcTks 
force  their  sentences  and  decrees,   as  have  usually  belonged  to  decrees. 
courts  of  chancery. 

5.  It  shall  be  the  duty  of  the  several  sheriffs   in  this  State  to  Sheriffs  to 
serve  all  notices,  issuing  from  clerks  and  masters  in  equity,  to  par-  issufng°from 
ties  concerned  in  all  references  to  them   made,  and  for  neglect  or  clerks  and 
failure  to  do  the  same  they  shall  be  subject  to  the  same  penalties,  '^^^  ^"^^^ 

as  by  law  provided  for  omission  or  neglect  in  serving  other  pro- 
cess issuing  to  them. 

6.  In  all  cases  where  decrees  shall  be  made  in  any  suit  in  equity  Executions 
for  any  sum  or  sums  of  money,  it  shall  and  may  be  lawful  for  exe-  ^'^aw^and^^ 
cution  to  issue  thereon  against  the  defendant's  body,  or  against  his  have  the  like 
goods  and  chattels,  lands  and  tenements,  to  satisfy  such  decree  and  ^'"'^'"^  ®^^*^*' 
costs,  in  the  same  manner  as  execution  may  or  shall  issue  at  law, 

and  lands  and  tenements,  goods  and  chattels  shall  be  bound  by 
such  decree  and  execution,  in  the  same  manner  as  lands  and  tene- 
ments, goods  and  chattels  are  by  judgments  and  executions  at  law. 

7.  Whenever  any  suit  shall  be  brought  in  any  of  said  courts  in  A  decree  for 
equity,  in  which  security  shall  be  given  for  the  prosecution  there-  defemiantVay 
of,  and  a  decree  shall  be  entered  up  against  the  plaintiff  for  the  be  given 
costs  of  the   defendant  or  defendants,  it  shall  be  the  duty  of  the  sSre"ty  for  the 
court,   upon   motion  of  the  defendant,  also  to  make  a  decree  for  prosecution  as 
said  costs  against  the  security  for  the  prosecution,  whereupon  exe- t^g  principal?^ 
cution  shall  issue  jointly  against  said  plaintiff  and  securities. 

8.  Where   the  defendant  or  defendants  in  any  case,  now  de- 

5.  1816,  c.  902. 

6.  1787,  c.  278,  S.  2,  '  ' 

7.  1831,  c.  46,  s.  1. 

8.  1801,  c.  574,  s.  1. 


182 


COURTS    OF    EQUITY.         [ChAP.  XXXII. 


In  case  of  de- 
fendant's death 
after  service,  a 
sci.  fa.  may  is- 
sue to  make  his 
representa- 
tives, parties. 


When  plaintiff 
dies,  his  repre- 
sentatives may- 
make  them- 
selves parties 
within  two 
terms  there- 
after. 

No  bill,  an- 
swer, &c.  to  be 
enrolled  till 
final  decree. 


Court  to  direct 
what  papers  to 
be  enrolled. 

No  injunction 
to  stay  an  ex- 
ecution shall 
issue  for  a 
greater  sum 
than  plaintiff 
swears  to  he 
just,  nor  until 
alter  security 
given. 


No  injunction 
to  issue  after 
four  months 
from  the  judg- 
ment at  law 
except  in  cer- 
tain cases. 


Injunction 
bonds,  after  dis- 
solution of  the 
injunction,  to 
be  proceeded 
on  like  appeal 
bonds. 


pending  or  hereafter  to  depend  in  any  of  the  courts  of  equity  with- 
in this  State,  shall  die  after  the  service  of  a  copy  of  the  complain- 
ant's bill  and  subpoena,  it  shall  and  may  be  lawful,  on  suggesting 
the  death  of  such  defendant  or  defendants,-  to  issue  a  scire,  facias 
against  the  legal  representatives  of  such  deceased  person  or  per- 
sons, in  the  same  manner  and  under  the  same  rules,  regulations 
and  restrictions  as  are  used  in  suits  at  common  law,  and  service  of 
such  writ  on  the  legal  representatives  shall  be  as  effectual  and  valid 
to  revive  and  carry  on  such  suit,  as  if  a  bill  of  revivor  had  been 
filed  against  them  and  they  served  with  a  copy  thereof. 

9.  Whenever  a  party  complainant  in  any  suit  in  equity  shall  die 
after  fihng  the  bill,  it  shall  and  may  be  lawful  for  the  legal  repre- 
sentatives of  such  deceased  person  to  carry  on  such  suit,  provided 
application  to  that  effect  be  made  by  such  representatives  to  the 
court,  in  which  such  suit  may  depend,  at  or  before  the  second 
term  after  the  decease  of  such  party  and  not  thereafter. 

10.  No  bill,  answer  or  other  paper  or  proceedings  in  any  suit 
in  any  court  of  equity  in  this  State,  (interlocutory  decrees  except- 
ed) shall  be  enrolled,  until  the  cause  is  finally  decreed  on,  and 
then  only  upon  motion  by  the  party  to  take  benefit  by  such  decree, 
and  the  court  shall  have  power  and  are  hereby  directed  to  adjudge 
and  determine  what  papers  shall  and  may  be  enrolled  in  any  suit 
on  motion  as  aforesaid. 

11.  No  injunction,  commanding  the  stay  of  an  execution  ob- 
tained in  any  court  of  this  State,  except  on  judgments  in  actions 
of  detinue,  shall  be  granted  by  the  judges,  or  any  of  them,  for  any 
other  or  greater  sum  than  what  the  complainant  or  complainants  shall 
on  oath  declare  to  be  just,  and  not  until  such  complainant  or 
complainants  shall  enter  into  bond  with  sufficient  security,  before 
the  master  of  the  court  of  equity,  whence  the  injunction  issues, 
for  the  payment  into  court  of  the  sum  complained  of  and  all  costs 
upon  the  dissolution  of  the  injunction. 

12.  No  injunction  to  stay  an  execution  shall  issue,  but  within 
four  months  after  the  judgment  at  law  is  obtained,  unless  it  shall 
appear  from  the  oath  of  the  complainant  or  complainants  to  the 
judge,  before  whom  application  is  made  for  an  injunction,  that  such 
application  has  been  delayed  in  consequence  of  the  fraud  or  false 
promises  of  the  plaintiff  at  law,  practised  or  made  at  the  time  of  or 
after  obtaining  judgment,  or  unless  it  shall  appear  on  oath  that  the 
said  complainant  or  complainants  was  or  were  out  of  the  State  at 
the  time  of  entering  up  judgment,  so  that  application  could  not  be 
made  within  the  time  aforesaid. 

13.  In  all  cases  where  bonds  are  given  on  obtaining  an  injunc- 
tion, upon  the  dissolving  of  the  injunction,  said  bond  shall  be  pro- 
ceeded on  in  the  same  manner  and  under  the  same  rules,  regula- 
ulations  and  restrictions,  that  bonds  given  upon  appeals  from  the 
county  to  the  superior  courts  are  proceeded  on. 


9.  1801,  c.574,  s.  2. 

10.  1801,  c.  574,  s.  3. 

11.  1800,  c.  551,  s.  1. 

12.  1800,  c.  551,  s.  2. 

13.  1810,  C.  794. 


.'it. 


Chap.  XXXII.]     courts  of  equity.  183 

14.  No  injunction,  bill  or  other  process  in  equity,  requiring  a  In  what  cases 
stay  of  any  execution  obtained  against  a  citizen  or  citizens  on  the  sti™eMcmio°ns 
part  of  the  State,  shall  be  granted  by  the  judges  thereof  or  any  of  on  behalf  of 
them,  until  the  complainant  or  complainants  shall  first  produce  a  [^/j^i^Q^^g^' 
receipt  from  the  public  treasurer  or  other  public  officer,  authorized 

to  give  the  same,  shewing  the  actual  payment  and  discharge  in  full 
of  all  such  part  of  the  judgment  obtained  as  aforesaid,  as  he  or 
they  by  their  bill  of  complaint  shall  not  on  oath  declare  is  unjust. 

15.  In  any  of  the  courts  of  equity,  where  any  of  the  parties  de-  C^ourt  to  ap- 
tendant  is  an  miant  or  person  non  compos  and  resides  out  oi  this  dian  for  infant 
State,  havine  no  euardian  residine  within  the  State,  it  shall  be  law- o^  non  co??)pos 

P  ■,  r        1  -1  •  1-  1    •    r  defendant  re- 

lul  lor  the  said  courts  to  appoint  a  guardian  to  such  inlant  or  per-  siding  out  of 
son  non  compos  to  defend  his  or  her  interest  in  the  suit,  to  which  *^  ^^.s^';?- 
he  or  she  may  be  defendant.     Provided  nevertheless,  that  the  said  &,c.  to  have' 
infant,  or  person  non  compos  may,  at  any  time  within  three  years  ^^■"^^  >,^^^^ 
after  the  decree  shall  be  made  in  said  suit,  appear  in  said  court  cree  to  appear 
and  petition  to  be  heard  with  respect  to  the  matter  of  such  de-''i*^°u'"^' '^<^- 
cree,  and   such  proceedings,  decree  and  execution  may  be  had 
thereon,  as  there  might  have   been  in  case  the  proceedings  had 
been  then  newly  begun  or  as  if  no  former  decree  or  proceedings 
had  been  in  the  same  cause. 

16.  In  any  case  which  now  is  or  hereafter  may  be  pending  in  Cause  may, 
any  court  oi  equity,  it  shall  and  may  be  lawlul  lor  such  court,  on  for  hearing,  be 
sufficient  cause  shown  by  affidavit  rendering  such  a  removal  neces-  removed  to  the 

CI  /  .       .  1         1  •  1  ^     r  supreme  court. 

sary  lor  the  purposes  oi  justice,  to  order  the  said  cause,  betore  a 
hearing,  to  be  removed  into  the  supreme  court  :  Provided,  that 
such  removal  shall  not  be  permitted  until  such  cause  shall  have 
been  set  down  for  hearing,  nor  shall  any  parol  evidence  be  re- 
ceived in  the  supreme  court,  either  before  the  judges  thereof  or  the 
jury,  wdiom  they  may  cause  to  be  empanelled  for  the  trial  of  any 
issues  of  fact,  except  witnesses  to  prove  exhibits  or  other  docu- 
ments. 

17.  No  bill  of  review  or  petition  for  a  rehearing  shall  lie  or  be  Time  within 
allowed,  upon  a  final  decree  in  any  of  the  courts  of  equity  within  J^gyje^^j^j" 
this  State,  but  within  five  years  next  after  such  decree  shall  have  tiiions  for  re- 
been  made  and  not  after  ;  saving  nevertheless  the  rights  of  infants,  iie"or"be^albw- 
femt  coverts  and    persons  non  compos  mentis,  so  that  they  avail  ed. 
themselves  of  the  benefit  of  the  writ  of  error  or  bill  of  review 

within  three  years  after  their  disabilities  shall  have  been  removed. 

18.  In  all  cases  hereafter,  where  any  clerk  and  master  in  equity  Clerk  and  mas- 
shall  sell  any  real  or  personal  estate,  in  obedience  to  a  decree  oftie  to  property 
a  court  of  equity,  and  shall  be  authorized  by  said  decree  to  makesoW  "ncier  an 
title  to  the  purchaser  or  purchasers  for  the  same,  the  deed  of  the  court. 

clerk  and  master  of  the  court  ordering  the  sale  shall  be  held,  deemed 
and  taken  as  good  and  sufficient  to  convey,  to  the  purchaser  or  pur- 
chasers, such  title,  interest  and  estate  in  the  real  or  personal  pro- 
perty so  sold,  as  the  party  of  record  owning  the  same  had  therein. 


14. 

U92,  c.  3G0,  s. 

1. 

15. 

1818.  c.  982,  s. 

3. 

16. 

1818,  c.  962,  s. 

5. 

17. 

1828,  c.  4,  s.  2. 

IS. 

1836,  c.  31. 

/r<i  ^.  ^-      o^  ~f    ^     S^U.s 


184 


COURT,    SUPREME. 


[Chap.  XXXIII. 


Note  —  References  to  Adjudged  Cases. 


Blount  vs.  Stanley,  2  Hay. 


and 


Sect.  4.  Jones  vs.  Stokes,  Martin,  36.  Anon.  1.  Hay.  286. 
163.     Worthington  t7s.  Calhoun,  2  Car.  Repos.  68. 

Sect.  9.  Anon.  1  Hay.  162. 

Sect.  11.  Gully  vs.  Gully,  1  Hawks,  20.     Collier  vs.  Bank  of  Newbem,  1  Dev. 
Bat.  Eq.  323. 

Sect.  12.  Pughtis.  Mear,  4  Hawks,  362, 

Sect.  13.  Jones  vs.  Hill,  2  Murph.  131.  Carrington  vs.  Carrington,  2  Hawks,  494. 
Casey  vs.  Giles,  1  Dev.  and  Bat.  1.  Collier  rs.  Bank  of  Newbern,  1  Dev.  and  Bat.  Eq. 
328.   Bozman  vs.  Armstead,  N.  C.  Term  R.  183. 

Sect.  16.  Lee  vs.  Norcum,  1  Dev.  Eq.  372.  Littlejohn  vs.  WiDiams,  2  Dev.  Eq.  380. 


CHAPTER  33. 


COURT,  SUPREME, 


AN  ACT  CONCERNING  THE  SUPREME  COURT. 


Section 

1.  Three  judges  of  the  supreme  court 

to  be  appointed. 

2.  Supreme  court  to  be  hold  en  in  Ra- 

leigh twice  in  each  year — Clerk's 
office  to  be  always  kept  in  Raleigh. 

3.  Judges  to  take  oaths  before  acting. 

4.  In  case  of  sickness,  &c.  two  judges 

may  hold  the  court. 

5.  A  chief  justice  to  be  appointed  by  the 

judges — Powers  and  authorities  of 
the  judges. 

6.  Power  and  jurisdiction  of  the  court — 

How  execution  to  issue  and  be  re- 
turnable— How  the  decisions  of  the 
court  to  be  transmitted  to  the  court 
below. 

7.  Judges  to  appoint  a  clerk,  who  shall 

give  bond  with  security  and  take  an 
oath  of  office. 

8.  Clerk  to  record  bills,  &c.   and  such 

other  parts  of  the  proceedings  eis 

the  court  shall  direct. 
Clerk's  pay  for  such  services. 
Judges  to  prescribe  rules  of  practice 

for  the  superior  courts. 
Upon     appeals     from    interlocutory 


9. 
10. 

11. 


Section 

judgments  or  decrees,  what  judg- 
ment the  supreme  court  shall  give, 
and  how  it  shall  be  certified. 

12.  Exhibits  in  equity  cases  in  the  su- 

preme court  may  be  proved  there  by 
witnesses — Rules  as  to  such  wit- 
nesses. 

13.  Judges  to  deliver  their  opinions  in 

writing — Clerk  not  to  give  a  cer- 
tificate, nor  to  issue  execution,  till 
the  opitdon  is  filed. 

14.  Power  of  the  court  to  amend  pro- 

ceedings— May  allow  the  taking 
further  testimony. 

15.  Clerk  to  transmit  to  the  courts  be- 

low certificates  of  the  decisions — 
Execution  for  costs,  how  issued. 

16.  Judges  shall  annually  appoint  a  re- 

porter— His  duties  and  compensa- 
tion. 

17.  When  the  clerk  shall  perform  the 

duties  of  reporter — His  compensa- 
tion therefor. 

18.  The  sheriff  of  Wake  to  attend  the 

supreme  court — His  pay. 


Three  iud<^es         !•   Be  it  enacted  by  the  General  Jlssembly  of  the  State  of  JVorth 

of  the  supreme  Carolina,    and  it  is  hereby  enacted  by  the  authority  of  the  same, 

pointed.  ^  '^^   That  there  shall  be  appointed,  by  jomt  vote  of  the  two  houses  of 

the  General  Assembly,  three  judges,   being  men  of  integrity  and 

learning  in  the  law,  who  shall  be  styled  Judges  of  the  Supreme 


1.   1818,  c.  962,  s.  1. 


M 


Chap.  XXXIII.]       court,  supreme.  185 

Court  of  North  Carolina,  shall  be  commissioned  by  the  governor, 
and  shall  hold  their  offices  during  good  behavior. 

2.  It  shall  be  the  duty  of  said  judges,  and  of  their  successors  in  ^"Feme  court 

^Y*  Till  c     I  '       c^  1  *  r  noiciBn  in. 

omce,  to   hold   the  supreme   court  oi   this    state,   at  the   city  oi  Raleigh  twice 

Raleigh,  twice  in  every  year,  viz  :  on  the  second  Monday  of  June,  "^  ^^^  y^^^- 

and  on  the  last  Monday  of  December  in  each  and  every  year,  and 

they  shall  continue  to  sit  at  each  term  until  all  the  business  on  the 

docket  shall  be  determined,  or  continued  upon  good  cause  shown  ; 

and  said  court  shall  bear  the  name  and  style  of  the  Supreme  Court 

of  North  Carolina,  and  shall  be   deemed  a  court  of  record  ;  and  Klerk's  office 

the  papers  and  records  belonging  to  the  clerk's  office  thereof  shall  kept  in 

be  constantly  kept  within  the  city  of  Raleigh.  Ralei^^h. 

3.  The  said  judges,  before  they  act   as  such,  shall,  before  the  J^fjfJ'^gfoJe^^ 
governor  for  the  time  being,  or  some  judicial  officer  of  the  Slate,  acting, 
severally  take  the  oath  to  support  the  constitution  of  the  United 

States,  the  oath  appointed  for  the  qualification  of  pubhc  officers, 
and  also  an  oath  of  office. 

4.  When  any  one  of  the  judges  of  said  court  is  disabled  from  In  case  of 
attending,  from  sickness  or  other  inevitable  cause,  two  of  the  judges  j^y^^^j^'  f^' 
of  the  said  court  shall  and  may  hold  the  said  court,  hear  and  deter-  may  hold  the 
mine  causes,  and  possess  and  exercise  every  other  authority,  which '^°'^'^''' 

by  law  may  appertain  to  said  court,  as  fully  to  all  intents  and  pur- 
poses as  if  all  the  judges  of  the  said  court  were  present, 

5.  The  judges  of  said  court  shall  appoint  one  of  their  number  ^  ^^"^f  justice 
to  preside  therein,  who  shall  thenceforth  be  styled  Chief  Justice  ed  by ^t?ie°"^ ' 
of  the  Supreme  Court  of  North  Carolina;  and  the  said  chief  justice,  Ju'^&^s. 

and  each  and  every  of  the  other  judges  of  the  supreme  court  afore-  Jhorities^of  the" 
said,  shall  have,  use,  exercise  and  enjoy  the  same  powders  and  judges, 
authorities,  rights,  privileges  and  pre-eminences  in  every  respect, 
as  are  now  had,  exercised,  used  and  enjoyed  by  the  ji^dges  re- 
spectively of  the  superior  courts  of  law  and  equity  within  this  State, 
except  that  no  judge  of  the  supreme  court  shall  be  authorized  to 
hold  a  superior  court  ;  and  for  the  purpose  of  carrying  such  powers 
and  authorities  into  execution,  each  of  the  said  chief  justice  and  , 

judges  of  the  supreme  court  may  make  any  fiat,  may  order  or  issue 
any  process,  and  perform  any  act,  which  it  is  lawful  for  any  judge 
of  the  superior  courts  to  make,  order,  issue  or  perform. 

6.  The  court  shall  have  power  to  hear  and   determine  all  ques- Power  and  ju- 
tions  at  law,  brought  before  it  by  appeal  from  a  superior  court  of  [jj^g  go^u°|^° 
law,  and  to  hear  and  determine  all  cases  in  equity,  brought  before 

it  by  appeal  from  a  court  of  equity,  or  removed  there  by  the  par- 
ties thereto,  and  in  every  case  such  court  may  render  such  sen- 
tence, judgment  and  decree,  as  on  an  inspection  of  the  whole 
record  it  shall  appear  to  them  ought  in  law  to  be  rendered  thereon  ; 
and  shall  have  original  and  exclusive  jurisdiction  in  repealing  letters 
patent,  and  shall  also  have  power  to  issue  writs  of  certiorari,  scire 
facias,  habeas  corpus,  mandamus,   and  all  other  writs  which  may 

2.  tSlS,  c.  962,  s.  2.— 1828,  C.  13.— 1805,  C.  674,  S.  1.— 1804,  c.  6C0  s.  2. 

3.  1818,  c.  963,  s.  1. 

4.  1834,0  13. 

5.  1518,  c.  963,  6.  2  . 

6.  1799,  c.  520,  s.  1  and  3.— 1818,  c.  962,  9.  4.— 1830,  c.  2,  S.  I.— ISlS,  o.  003,  i.  4. 

VOL.  I.  24 


186 


COURT,  SUPREME.  [ChAP.  XXXIII. 


How  the  de- 
cisions of  the 
court  to  be 
transmitted  to 
the  court  be- 
low. 


Judges  to  ap- 
point a  clerk 
who  shall  give 
bond  with  se- 


be  proper  and  necessary  for  the  exercise  of  its  jurisdiction  and 
How  execution  agreeable  to  the  principles  and  usages  of  law  ;  and  it  may,  at  its 
returnable.  discretion,  make  the  writs  of  execution,  which  it  may  issue,  re- 
turnable either  to  the  said  court  or  to  the  superior  court,  from 
which  the  same  may  have  been  removed  :  Provided  always,  that 
when  an  execution  shall  be  made  returnable  as  last  mentioned,  a 
certificate  of  the  final  judgment  of  the  supreme  court  shall  always 
be  transmitted  to  the  superior  court  aforesaid,  and  there  be  record- 
ed :  Jlnd  provided  further,  that  the  said  superior  court  may  en- 
force obedience  to  the  said  execution,  and  in  the  event  of  its  not 
being  executed,  may  issue  any  new  or  further  execution  or  process 
thereon,  in  the  same  manner  as  though  the  first  execution  had 
issued  from  the  said  superior  court  :  And  provided  further,  that  in 
criminal  cases  the  decision  of  the  supreme  court  shall  be  certified 
to  the  superior  court,  from  which  the  case  was  transmitted  to  the 
supreme  court,  which  said  superior  court  shall  proceed  to  judg- 
ment and  sentence  agreeably  to  the  decision  of  the  supreme  court 
and  the  laws  of  the  State. 

7.  The  judges  of  the  supreme  court  aforesaid  shall  have  power 
to  appoint  a  clerk  of  the  said  court,  who  shall  hold  his  office  for 
four  years,  and  who,  before  entering  on  the   duties  of  his   office, 

an^athrfof-^'^^^^^^  enter  into  bond,  with  sufficient  security,  payable  to  the  State 
fice.  of  North  Carohna,  in  the  sum  often  thousand  dollars,  conditioned 

for  the  faithful  discharge  of  his  duties  and  for  the  safe  keeping  of 
all  records  committed  to  his  custody,  which  bond  shall  be  lodged 
with  the  secretary  of  state,  and  Avho  shall  also,  before  said  judges, 
or  one  of  them,  take  the  same  oath  as  is  prescribed  by  law  to  be 
taken  by  the  clerks  of  the  superior  courts,  and  shall  keep  his  of- 
fice in  the  city  of  Raleigh  in  one  of  the  rooms  of  the  state  house, 
and  the  judges  are  authorized  to  hold  the  court  in  the  state  house. 

8.  It  shall  be  the  duty  of  the  said  clerk,  in  all  cases  in  equity 
now  pending  in  that  court  or  which  may  hereafter  be  in  said  court, 
to  record  all  bills,  answers,  pleas,  replications  and  demurrers,  with 
all  decrees,  whether  interlocutory  or  final,  made  therein,  together 
with  the  opinions  of  the  chief  justice  and  judges  of  said  court, 
and  the  said  clerk  shall  only  record  other  parts  of  the  proceedings 
in  equity  cases,  when  for  sufficient  reasons  it  may  be  specially  or- 
dered by  said  court:  Provided,  that  no  account,  deposition  or  com- 
mission to  take  the  same  shall  be  ordered  to  be  recorded,  except 
at  the  expense  of  the  party  or  parties  requiring  it  to  be  done. 

9.  In  esthnating  the  allowance  to  the  clerk,  for  making  the  re- 
cord as  directed,  the  judges  shall  not  exceed  the  sum  of  thirty 
cents  for  each  page  recorded. 

10.  The  judges  of  the  supreme  court  shall  prescribe  and  es- 
practlcrfor  the  tabhsh,  from  time  to  time,  rules  of  practice  for  the  superior  courts, 
superior  courts. -^vl-,j(.]^  j'ul^^s  l_}je  clerk  of  the  supreme  court  shall   certify    to  the 

judges  of  the  superior  courts,  who  shall  cause  the  same  to  be  en- 
tered on  the  records  of  the  said  courts. 


Clerk  to  record 
bills,  &c.  and 
such  other 
parts  of  the 
proceedings  as 
the  court  shall 
direct. 


Clerk's  pay 
for  such  ser- 


vices. 


Judges  to  pre- 
scribe rules  of 


7.  1S18,  c.  963,  s.  5.  — 181-2,  c.  829,  S.  2. 

8.  1831,  c.  20,  s.  1. 

9.  1S31,  c.  2t),  9.  2. 
10.  181S.  c.  968,  8.  9. 


Chap.  XXXIII. ]        court,  supreme.  187 

11.  When  an  appeal  shall  be   taken  to  the  supreme  court  from  ppon. appeals 

,  ^  '■,  1  r  •  •       ii'om  interlo- 

any  interlocutory  judgment  at  law   ol  a  superior  court,  or  any  ni- cutory  judg- 
terlocutory  order  or  decree  of  any  court  of  equity,   the  supreme  ments  or  de- 
court  shall  not  enter  any  judgment,  reversing,  affirming  or  modify- judgment  the 
ing  the  judgment,   order  or  decree,  so  appealed  from,  but  shall  *"P[f™.^  ^^rt 

°  J.    o     .    .  '  ,  •/-     1  1  11  •  1    •  shall  give,  and 

cause  their  opinion  to  be  certined  to  the  court  below  with  instruc-  how  it  shall  be 
tions  to  proceed  upon  such  order,  judgment  or  decree,  or  to  re- •^^'■'•i^'^*^- 
verse  or  modify  the  same,  according  to  said  opinion,  and  it  shall 
be  the  duty  of  the  court  below  to  enter  upon  its  records  the  said 
opinion  at  length,  and  to  proceed  in  the   said   cause  according  to 
said  instructions. 

12.  All  exhibits  or  other  documents,  relative  to  cases  in  equity  Exhibits  in 
now  pending  or  which  may  be  hereafter  pending  in   the  supreme  fj^e  supreme  ^'^ 
court,  may  be  proved  by  the  parol  testimony  of  a  witness  or  wit-  court  may  be 

^     •;  ^       .,.*'.,  ^  ^     .,         •'  J  proved  there  by 

nesses  to  be  examined  m  said  court,  in  the   same  manner  and  un-  witnesses, 
der  the  same  rules  as  such  exhibits  or  documents  may  be  proved 
in  the  superior  courts  ;  and  suitors  in  said  court  shall  have  subpoe^p^^jlggj^g  ^q 
nas  to  enforce  the  attendance   of  witnesses,  who  shall  be  hable  to  such  witnesses. 
the  same  penalties  and  actions  for  non-attendance  and  be  entitled 
to  the  same  compensation  for  travelling,  ferriage  and   attendance, 
as  witnesses  in  the  superior  courts:  Provided  always^  that  the  wit- 
nesses attending  the  supreme  court  shall  be   taxed  in  the  bill   of 
costs,  and  paid  by  the  party  on  whose  behalf  they  may  be  sum- 
moned. 

13.  It  shall  be  the  duty   of  the   judges  of  said  court  to  deliver  ;'!'^^s^,f  ^? '^^r 

,...  .,•'.  J.o.,,  ^       liver  their  opm- 

tneir  opinions  or  judgments  m  writing,  with  the  reasons   at  lull  ion  in  writing. 

length  upon  which  they  are  founded  ;  and  it  shall  not  be  lawful  for 

the  clerk  of  the  said  court  to  make  any  entry  upon  the  records  of  ^.^'^^'^  "°\^fi 

1  -J  1  1  1-  1      "^  •      •      1      •  1     1  give  a  certifi- 

tne  said  court,  that  any  cause  depending  therein  is  decided,  nor  to  cate,  nor  to  is- 
give  to  any  person  or  persons  whatever  any  certificate  of  such  de-^^j®^^j^'^^^"jjj°"jj 
cision,  nor  to  issue  execution  for  the  costs  in  such  suit,  until  after  is  filed, 
the  chief  justice  or  some  judge  or  judges,   members   of  the  said 
court,  shall  have  delivered,  pubhcly  and  in  open  court,  the  opin- 
ion of  the  said  court,  stating  at  length   the  ground  and  argument 
upon  which  such  opinion  shall  be  founded  and  supported,  and  shall 
have  also  delivered   a  written   copy  of  the   same   opinion  to  the 
clerk,  which  shall  afterwards  be  filed  among  the  records  of  the  said 
court  and  pubhshed  in  the  reports,  herein  directed  by  law  to   be 
pubhshed,  of  the  decisions  made  by  the  said  court. 

14.  The  supreme  court  shall  have  power  to  make  any  amendments  ^o°u^"to°^amend 
in  any  case  pending  before  it,  by  making  the  parties  thereto  which  proceedings, 
said  court  may  deem  necessary   and   proper  for  the  purposes  of 

justice,  and  upon  such  terms  as  said  court  shall  prescribe,  and  also, 
whenever  it  shall   appear  to   them  necessary   for  the   purposes  of 
justice,  to  allow  and  direct  the  taking   of  further  testimony  in  any  faking^oTfu!*-^ 
case   in   equity,  which   may   be  removed  to  said  court  for   trial,  ther testimony, 
under  such  rules  and  restrictions  as  the  said  court  may  in  its  dis- 
cretion prescribe. 

11.  1831,  c.  34,  s.  3. 

12.  1820,  c.  1043. 

13.  1810,  c.  785,  s.  3.— 1811,  c.  808,  s.  1. 

14.  1822,  e.  1143.— 1825,  c.  1286. 


188  COURT,  SUPREME.  [ChAP.  XXXIII. 

Clerk  to  trans-  15,  The  clerk  of  the  said  court  shall,  immediately  after  the  rise 
courts  below,  0^  each  term  thereof,  transmit  to  the  clerks  of  the  superior  courts 
certificates  of    of  law  and  courts  of  equity,  certificates  of  the  decisions  of  the  su- 

the  decisions.  ^  ■  r  -j  ^  ii  ^i-j 

preme  court  m  cases  sent  irom  said  courts,  and  thereupon  the  said 
clerks  respectively  shall  issue  execution  for  the  costs   incurred  in 
said  cases  in  the  courts  from  which  the  same  were  sent,  and  the 
Execution  for   clerk  of  the  supreme  court  shall  issue  execution  for  the  costs  in- 
costs,  howis-    curred  in  said  court,  including  all  publications  in  newspapers  made 
in  the  progress  of  the  cause   in   that   court,  and  by  order  of  the 
same,  and  all  postage  of  letters,  which  concern  the  transfer  of  ori- 
ginal papers. 
Judges  shall  ig.    The  judges  of  the  supreme  court  shall  annually  appoint  a  re- 

point\  re^^'  porter  of  the  decisions  thereof,  whose  duty  it  shall  be,  within 
porter.  fiye  months  after    the  close  of  each  term,   to  prepare  the  deci- 

His  duties  and     .  r       •  i  r        i  i  i        i     n  •  i 

compensation,  sions  01  said  court  lor  the  press,  and  he  shall  contract  with  some 
printer  to  print  one  hundred  and  one  copies,  at  the  expense  of  the 
State,  which  copies  shall  be  distributed  as  follows,  viz:  to  the  sec- 
retary of  the  governor  one  copy,  to  retain  one  copy  himself, 
which  copies  shall  remain  in  their  respective  offices,  and  six  copies 
to  be  deposited  in  the  public  library  ;  and  the  said  reporter  shall 
deliver  sixtyfive  copies  of  said  reports,  to  be  deposited  one  in  the 
office  of  the  clerk  of  the  court  of  pleas  and  quarter  sessions  of 
each  county  in  this  State,  and  twentyeight  copies  by  him  to  be  de- 
posited in  the  executive  office  of  the  State,  to  be  transmitted  by 
the  governor  to  the  executive  department  of  each  of  the  states  and 
territories  at  the  expense  of  the  State  ;  and  said  reporter  shall 
receive,  as  a  compensation  for  his  services,  a  salary  of  three  hundred 
dollars,  and  shall  be  authorized  on  his  own  account  and  at  his  own 
expense  to  print,  publish  and  vend,  and  to  obtain,  under  this  grant 
and  in  conformity  witn  the  act  of  congress,  the  copyright  of  said 
■  reports  of  cases  determined  by  said  court,  which  salary  shall  be 
paid  to  him  upon  satisfactory  evidence  to  the  treasurer  that  the 
aforesaid  copies  have  been  deposited  and  distributed  within  the 
time  aforesaid,  and  not  otherwise. 
sli^a'^  r  .'^.n  ^^-  Should  the  office  of  reporter  become  vacant  and  no  suitable 
the  dutiea  of  perscu  ofler  to  fill  the  same,  the  judges  of  the  supreme  court  or 
reporter.  either  of  ihem  shall  notify  the  clerk  of  said  court  of  such  vacancy  ; 

and  it  shall  then  be  the  duty  of  said  clerk  to  prepare  the  decisions 
for  the  press,  and  at  his  option  either  to  publish  the  same  on  his 
own  account,  as  the  reporter  is  authorized  to  publish  them,  or,  as 
agent  for  the  State,  to  contract  with  some  printer  in  this  State  or 
in  anj'  other  state  to  print  the  same  ;  and  the  said  clerk  for  his  own 
His  compen?a- services  in  preparing  the  decisions  of  one  year  for  the  press  and  a 

tlOTi  tnprf  lor  •  •       •  ■• 

compensation  to  the  printer  to  be  paid  by  him  for  publishing  the 
same,  shall  be  entitled  to  receive  the  salary  of  the  reporter  ;  and  the 
clerk,  upon  depositing  with  the  secretary  of  state  the  copies  reserved 
by  law  for  ihe  Stale,  within  six  months  after  the  term  of  decision, 

15.   182.J,  c.  1252. —1820,  c.  1070. 

18.   1322,0    il'H,  s.  2.— 1331,  c.    33,  s.  1  and  2.— 1313,    c.  963,  s.  13.— Resolution   of 
1835.-1821,  c.  1091,  s.  1. 
17.   1821,  c.  .091.  s.  2. 


Chap.  XXXIV.]  crimes  and  punishments. 


189 


shall,  upon  the  certificate  of  the  secretary  of  state  to  that  effect,  be 
entitled  to  receive  the  compensation  by  law  allowed  to  the  reporter. 

18.   It  shall  be  the  duty  of  the  sheriff  of  Wake,  by   himself  or  The  sheriff  of 
deputy,  to  attend  the  said  court,  and  he  shall  be  allowed  for   each  ^'\^^,^°  ^^" 
term  thereof  he  may  attend,  the  sum  of  two  dollars   per   day    for  preme  court, 
every  day  said  court  shall  be  in  session,  to  be  paid  by  the  treasu- 
rer upon  the  certificate  of  the  clerk    of  said    court,  that   the  said 
sheriff  had  performed  said  duty. 

18.  1816,  c.  933.— 1819,  c.  136  of  pamphlet  acts. 


Note. — References  to  Adjudged  Cases. 
Sect.  15.  Sparks  vs.  Wood,  1  Dev.  and  Bat.  489. 


CHAPTER  34. 


CRIMES    AND   PUNISHMENTS, 


AN  ACT  CONCERNING  CRIMES  AND  PUNISHMENTS. 


Section 

1 .  Benefit  of  clergy  taken  from  murder, 

burglary,  arson  and  robbery  on  the 
highway. 

2.  And  from   the   accessories  to  those 

crimes  before  the  fact. 

3.  Fighting  a  duel  when  one  party  is 
killed,  felony. 

4.  Castration  with  malice  aforethought, 

felony. 

5.  Rape,  &c.,  felony. 

6.  Crime  against  nature,  felony. 

7.  Burning  a  public  building,  felony. 

8.  Felony  to  break  houses  in  the  day 

time  and  steal  therefrom. 

9.  Killing  a  slave,  homicide. 

10.  Stealing  slaves,  felony. 

11.  Concealing,  &c.  a  slave,  with  intent 

to  remove  him    out  of  the  State, 
felony. 

12.  Taking  a  free  person  of  color  from 

this  to  another  State  with  intent  to 
sell  him,  felony. 

13.  Malicious  maiming,  how  punishable. 

14.  Bigamy,    what    shall   be,   and   how 

punishable. 

15.  Horse  stealing,  how  punishable. 

16.  Burning  bridges,  how  punishable. 

17.  Circulating     seditious     publications 

among  slaves,  how  punishable. 


19. 


20. 


21. 


Section 
18.  Endeavoring  to   excite   insurrection 
among  slaves  by  words,  how  pun- 
ishable. 
Servants  embezzling  their  master's 

goods,  how  puTiishable. 
Breaking  prison,  when  a  capital  of- 
fence. 
Forgery,  hov/  punishable. 

22.  Additional  punishment  of  grand  lar- 

ceny. 

23.  Robbery  of,  or  stealing  bank  notes, 

&c.,  how  punishable. 

24.  Stealing  growing  corn,  &c.,  larceny. 

25.  Benefit  of  clergy  not  to  be  allowed 

twice. 

Punishment  for  clergiable  offences. 

How  offenders  to  be  dealt  with  after 
having  been  allowed  their  clergy. 

Benefit  of  clergy  shall  not  release 
from  an  offence,  not  clergiable,  pre- 
viously committed. 

Women  entitled  to  benefit  of  clergy. 

Concealing  the  birth  of  a  bastard 
child,  how  punishable. 

Forfeiture  for  suicide  abolished. 

Attempt  to  burn  a  public  building, 
how  punishable. 

Embezzlin.r  records,  &c.,  how  pun- 
ishable. 


26. 

27. 

28. 


29, 
30. 

31, 
32. 

33. 


190 


CRIMES  AND  PUNISHMENTS.    [ChAP.  XXXIV. 


Section 

34.  Buying  and  selling  offices  prohibited, 

and  how  punishable. 

35.  Punishment    of    jurors    for    taking 

bribes,  and  of  those  who  bribe  them. 

36.  Sheriff  or  other  officer  suffering  a 

criminal  to  escape,  how  punishable. 

37.  Duty  of  the  attorney  general  and  so- 

licitors in  such  cases. 

38.  Breaking  up  an  election,  liow  punish- 

able. 

39.  Public  commissioners  becoming  con- 

tractors,  to  be   guilty  of  a  misde- 
meanor. 

40.  Overseers  of  roads  to  be  indicted  for 

neglect  of  duty. 

41.  Owners  of  water  mills  subject  to  be 

indicted  for  not  keeping  up  bridges. 

42.  Persons  not  keeping  lawful  fences, 

liable  to  indictment. 

43.  Persons  trespassing  on   the   public 

lands,  liable  to  indictment. 

44.  Punishment  of  vagrants. 

45.  Punishment   for  hawking  and  ped- 

dling without  a  license. 

46.  Fornication  and  adultery,  how  pun- 

ishable. 

47.  Marrying  a  female  under  fifteen  with- 

out the  written  consent  of  her  father, 
indictable. 
4S.  Unlawful  maiming  without  malice, 
how  punishable. 

49.  Punishment  for  sending,  accepting  or 

bearing  a  challenge  to  fight  a  duel. 

50.  Perjury,  how  punishable. 

5 1 .  Subornation  of  perjury,  how  punish 

able. 

52.  Proviso  as  to  cutting  off  ears. 

53    Accessories  to  felonies,  how  punish- 
able in  certain  cases. 

54.  Receivers  of  stolen  goods,  &LC.  how 

punishable. 

55.  Altering  the   mark   or  mismarking 

cattle,  &c.,  how  punishable. 

56.  Holding  out  false  lights  on  the  sea 

coast,  how  punishable. 

57.  Counterfeiting  gold  or  silver' coins, 

how  punishable. 

58.  Having  in  possession  instruments  for 

counterfeiting,  how  punishable. 

59.  Counterfeiting  bank  notes,  &c.,  how 

punishable. 

60.  Passing,  or  attempting  to  pass  coun- 

terfeit notes,  &.C.,  how  punishable. 

61.  Cheating  by  false  tokens,  how  pun- 

ishable. 

62.  Punishment  for  carrying  on  lotteries. 
63-  Punishment  for  selling  tickets,  &c., 

in  lotteries. 
64.  Gaming  tables  prohibited. 


Section 

65.  Money   staked   for  betting  may  be 

seized. 

66.  Penalty  for  opposing  the  destruction 

of  the  tables,  or  the  seizure  of  the 
money. 

67.  Penalty  for  suffering  gaming  tables 

in  one's  house — Sheriff  to  sue  for 
the  penalty. 

68.  To  keep  up  gaming  tables,  or  to  play 

at  them,  indictable. 

69.  Persons   playing  cards   in  a   public 

house,  indictable. 

70.  Tavern  keepers  and  retailers  of  spir- 

ituous liquors  indictable  for  suffering 
gaming  in  their  houses. 

71.  Persons  stealing  or  selling  free  ne- 

groes in  this  State,  how  punishable. 

72.  The  clerk  who  issues  a  license  for 

the  marriage  of  a  free  negro,  &c. 
mth  a  white  person,  and  the  jus- 
tice, &c.  who  marries  such  persons, 
shall  be  subject  to  indictment. 

73.  Persons   harboring  runaway  slaves, 

how  punishable. 

74.  Teaching  slaves  to  read  or  write,  the 

use  of  figures  excepted,  indictable. 

75.  Penalty  for  trading  with  slaves  for 

certain  articles — Proviso,  that  such 
trading  may  be  in  the  day  time,  and 
with  the  written  permit  of  the  mas- 
ter, &c.  of  such  slaves — Proviso, 
not  to  extend  to  spirituous  liquors, 
fire  arms,  powder,  shot  or  lead. 

76.  Penalty  on  masters  of  vessels  for  en- 

tertaining slaves  and  free  persons 
of  color  on  board  their  vessels  at 
certain  times  without  a  written  per- 
mit. 

77.  Trading  with  slaves  to  be  indictable. 

78.  What   circumstances  shall  be  taken 

as  presumptive  evidence  of  such 
trading  against  the  owners  of  stores 
and  shops. 

79.  Penalty    for   fraudulently   giving   a 

slave  a  written  permit  to  trade. 

80.  Appeals  allowed  in  cases  of  prosecu- 

tion or  indictment  for  trading  with 
slaves. 

81.  Retailing  spirituous  liquors  by  the 

small  measure,  without  a  license, 
indictable. 

82.  Sheriff  to   furnish   county   attorney 

with  a  list  of  those  having  license 
to  retail,  to  be  laid  before  the  grand 
jury. 

83.  Hunting  in  the  woods  with  a  gun, 

by  fire  light,  indictable. 

84.  Persons  sending  their  slaves  to  hunt 

in  the  woods,  &c  ,  how  punishable. 


Chap.  XXXIV.]  crimes  and  punishments.  191 


SscTioN  Section 

85.  An  accomplice  in  fire  hunting,  upon 

giving  evidence  against  his  fellow, 
to  be  discharged. 

86.  Penalty  on  any  person  or  corporation 

for  issuing  due  bills. 
S7.  Penalty  for  passing  or  receiving  due 

bills. 
88.  Penalty  for  passing  or   receiving  a 

check  on  any  bank  for  any  sum  less 

than  one  dollar. 


89.  The  issuing,  passing  or  receiving  due 
bills,  or  the  passing  or  receiving  a 
check  on  any  bank  for  a  sum  less 
than  one  dollar,  to  be  indictable. 

90.  Any  person  or  corporation,  issuing 
notes  to  pass  for  money,  without  be- 
ing authorized  by  law  so  to  do, 
how  punishable. 

91.  Fines  and  penalties,  how  appropria- 
ted. .  ■  ■ 

/^^f.  cl U'^^^'^0,  -J or 

1.  Be  it  enacted  by  the  General  Assembly  of  the  State  ofJVorth 
Carolina^  arid  it  is  hereby  enacted   by  the  authority  of  the  same, 

That  no  person  who  shall  be  convicted,  according  to   due  course     'J'^l'^  °^f*^^^''' 
of  law,  of  any  wilful  murder  of  malice  prejaense,    or  of  any  felo-  murder,  bur- 
nious  burglary,  or  of  any  wailful  burning  of  any  dwelling  house,  or  1^^'^^^^^^°"  ^^^ 
any  part  thereof,   or  any  barn  then  having  grain  or   corn  in  the  the  highway, 
same,  or  store  house,  grist  or  saw    mill  house,    or    any    building 
erected  for  the  purpose  of  manufacturing  any   article  whatever,  or 
of  robbing  any  person  in   or  near    any    public    highway,  shall   be 
admitted  to   the  benefit  of  his  clergy;  but  every  person,  so  con- 
victed, shall  be  utterly  excluded  thereof,  and  shall  suffer  death. 

2.  All  and  every  person  and  persons,  that  shall  maliciously  com-  And  from  the 
mand,  hire  or  counsel  any  person  or  persons  to  commit  or  do  any  accessories  to 
wilful  murder,  or  any  robbery  in  or  near  any  highway,  or  any  bur- teforeThe' feet, 
glary,  or  wilfully  to  burn  any  dwelling  house  or   any  part  thereof, 

or  any  barn  then  having  any  corn  or  grain  in  the  same,  or  store 
house,  grist  or  saw  mill  house,  or  any  building  erected  for  the  pur- 
pose of  manufacturing  any  article  whatever,  being  thereof  convict- 
ed according  to  due  course  of  law,  shall  not  have  the  benefit  of 
his,  her  or  their  clergy  ;  but  shall  be  utterly  excluded  thereof,  and 
shall  suffer  death. 

3.  If  any  person  fights  a  duel,  in  consequence   of  a  challenge  pi^hting  a  du- 
sent  or  received,  and  either  of  the  parties  shall  be  killed,  then  the  el  when  one 
survivor,  on  conviction  thereof,  shall  suffer   death  without  benefit  Felony!^   ^ 

of  clergy  ;  and  all  their  aiders  or  abettors  shall  be  considered  ac- 
cessories before  the  fact,  and  likewise  suffer  death  without  benefit 
of  clergy. 

4.  If  any  person  shall  hereafter,  of  malice  aforethought,  unlaw- castration  with 
fully  castrate  any  other  person,  or  cut  off,  maim  or  disfigure  any  of  malice  afore- 
.u  •  u  e  \i     •   ^      ^-  ,  A  •       thought,  fel- 
the  privy  members  oi  any  person,  with   intent  to   murder,   maim,  ony. 

disfigure,  disable  or  render  impotent  such  person,  the  person  so 
offending  and  his  or  her  counsellors,  abettors  and  aiders,  knowing 
of  and  privy  to  the  offence  as  aforesaid,  shall,  on  conviction  there- 
of, be  deemed  guilty  of  felony,  and  shall  suffer  death  without  be- 
nefit of  clergy.  f 

1.  23  Hen.  S,  c.  1,  s.  3.-25  H(-n.  8,  c.  3.— 1  Edw.  6,  c.  12, s.  10—18  Eliz.  c.  7.  s.  1. 
—8  Eliz.  c.  4. 

2.  4  &  5  Phil,  and  Mary,  c.  4.-3  &  4  Will,  and  Mary,  c.  9. 

3.  1802,  c,  608,  S.2. 

4.  1831,  c.  40,  5.  1. 


192  CRIMES  AND  PUNISHMENTS.    [ChAP.  XXXIV. 

Rape,  &c.  fel-  5.  Any  person,  who  shall  ravish  and  carnally  know  any  female, 
°"^"  of  the  age  of  len  years  or  more,  by  force  or  against  her  will,  or 

who  shall  unlawfully  and  carnally  know  and  abuse  any  female  child 
under  the  age  of  ten  years,  shall  be  adjudged  guilty  of  felony,  and 
shall  suffer  death  without  benefit  of  clergy. 
Crime  against       6.  Any  person  who  shall  commit  the  abominable  and  detestable 
nature,  felony,  crime  against  nature,  not  to  be  named  among  christians,  with  either 
man  or  beast,  shall  be  adjudged  guilty  of  felony,  and  shall  suffer 
death  without  benefit  of  clergy. 
Burning  ajjub-      7.   jf  g^y  person   or  persons   shall  wilfully  or  maliciously  burn 
felony.     ^'      the  State  house  or  any  of  the  pubhc  offices   of  this  State,  or  any 
court  house,  jail,   arsenal,  clerk's  office,   register's  office,  or  any 
house,  belonging  to  any  incorporated  town  in  this  State,  in  which 
the  archives,  documents  or  public  papers  of  such  town   are  kept, 
he,  she  or  they  shall  be  deemed  guilty  of  felony,  and,  on  convic- 
tion thereof,  shall  suffer  death  without  benefit  of  clergy. 
Felony  to  ^'   '^  ^"7  person  or   persons  shall  break  any    dwelling  house, 

break  houses  in  shop,  warehouse  or  other  outhouse  thereto  belonging  or  there- 
and  steal  t^ere- ^^'^th  used,  in  the  day  time,  and  feloniously  take  away  any  money, 
from.  goods  or  chattels,  of  the  value  of  two  dollars  or  upwards,  therein 

being,  although  no  person  shall  be  within  such  dwelling  house, 
shop,  warehouse  or  other  outhouse,  or  shall  comfort,  aid  or  abet, 
assist,  counsel,  hire  or  command  any  person  or  persons,  to  com- 
mit such  offence,  and  be  thereof  lawfully  convicted,  or  being  in- 
dicted, shall  stand  mute,  or  peremptorily  challenge  more  than  thir- 
tyfive  jurors,  he,  she  or  they  shall  suffer  death  without  benefit  of 
clergy, 
ho^^^"'/  ^^^""^  ^'  '^^^^  offence  of  killing  a  slave  shall  be  denominated  and  con- 
sidered homicide,  and  shall  partake  of  the  same  degree  of  guilt, 
when  accompanied  with  the  like  circumstances,  that  homicide  now 
does  at  common  law. 
felony"^  *  ^^^'^  ^0-  -^^J  person  or  persons,  who  shall  steal  or  shall  by  violence, 
seduction  or  any  other  means,  take  or  convey  away  any  slave  or 
slaves,  the  property  of  another,  with  an  intention  to  sell  or  dis- 
pose of  to  another,  or  appropriate  to  their  own  use  such  slave  or 
slaves,  and  be  thereof  legally  convicted,  shall  be  adjudged  guilty 
of  felony,  and  shall  suffer  death  without  benefit  of  clergy. 
ac'^ETslave'  ^^'   ^^  ^"7  person  or  persons  shall  wickedly,  Millingly  and  felo- 

with  intent 'to    niously  carry,  convey  or  conceal  any  slave  or  slaves,  the  property 
remove  him      q^-  ^      citizen  or  citizens   of  this  State,  without  the   consent,  in 

out  of  the  .  .  •'       ^     ,  I'll-  T 

State,  felony,  writing  oi  the  owner  or  owners,  his,  her  or  their  guardian  or  guar- 
dians of  such  slave  or  slaves,  previously  obtained,  or  shall  feloni- 
ously, wickedly,  and  willingly  take,  conceal,  or  permit  or  suffer 
the  same  to  be  done,  with  the  intent  and  for  the  purpose  of  car- 
rying and  conveying  such  slave  or  slaves  out  of  the  limits  of  this 
State,  or  with  the  intent  and  for  the  purpose  of  enabling  such  slave 

.  5.  18  Eliz.  c.  7. 

6.  25  Hen.  8,  c.  6.-5  Eliz.  c.  17. 

7.  1830,  c.  41,  s.  1. 
^S.  1806,  c.  697,  s.  I. 

0.  1791,  c.  335,  s.  3.— 1801,  c.  585.— 1817,  c.  949. 
■  10.  1779,  C.  142,  S.  2. 

11.  1832,  c.  9.— 1825,  C.  1250,  5.  1.— 1833,  c.  18,  s.  1. 


Chap.  XXXIV.]  crimes  and  punishments.  193 

or  slaves  to  elTect  an  escape  out  of  this  State,  every  such  person 
or  persons,  so  carrying,  conveying  and  concealing,  or  so  taking, 
concealing,  or  causing  or  permitting  the  same  to  be  done,  v^ith  the 
intent  as  aforesaid,  shall  be  taken  and  deemed  to  be  guilty  of  felo- 
ny, and  shall  suffer  death,  without  benefit  of  clergy. 

12.  Any  person  or  persons,  who  shall,  by  violence  or  any  oth- J^^^g^^S^^^^^^^^^j. 
er  means,  take  or  convey  any  free  negro  or  free  negroes  or  per-  from  this  to 
sons  of  mixed  blood,  out  of  this  State  to  another,  with  an  inten- ^'^"^'^^J^®^^^^^ 
tion  to  sell  or  dispose  of  such  free  negro,  or  free  negroes,  or  per-  sell  him, 
sons  of  mixed  blood,  and  be  thereof  legally  convicted,  shall  be  ad-'    "y- 
judged  guilty  of  felony,   and  shall  suffer  death,  without  benefit  of 

clergy. 

13.  If  any  person  or  persons  shall,  of  malice   aforethought,  un-jjj^j^?°g^jjo^ 
lawfully   cut  out  or  disable  the    tongue,  or  put  out  an  eye  of  any  punishable, 
person,  with  intent  to  murder,   maim,  or  disfigure,  the  person  or 

persons  so  offending,  their  counsellors,  abettors  and  aiders,  know- 
ing of  and  privy  to  the  offence  as  aforesaid,  shall,  for  the  first  of- 
fence, stand  in  the  pillory  for  two  hours,  and  receive  thirtynine 
lashes  on  the  bare  back  :  and  for  the  second  offence  shall  be  and 
are  hereby  declared  to  be  guilty  of  felony,  and  shall  suffer  as  in 
case  of  felony,  without  benefit  of  clergy. 

14.  If  any  person  now  married,  or  who  shall  be  hereafter  mar- ^^a?'?)'' "^'l^^ 
ried,  doth   take    to  him  or  hersell^  another  husband  or  wife,  while  how  punish- 
his  or  her  former  wife  or  husband  is  still  alive,  every  such  offence  ^'^^^• 

shall  be  felony,  and  the  person  so  offending  shall  suffer  death  as  in 
cases  of  felony  :  Provided,  that  he  or  she  shall  be  entitled  to  the 
benefit  of  clergy,  as  in  cases  of  felony  at  common  law  :  And  if  any 
person  shall  be  convicted  of  this  offence  and  have  the  benefit  of 
clergy  allow^ed  him  or  her,  it  shall  and  may  be  lawful  for  the  court, 
before  whom  such  offender  may  be  convicted,  to  sentence  the  of- 
i"ender  to  be  fined  and  imprisoned,  and  to  receive  one  or  more 
public  whippings,  and  to  be  branded  on  the  left  cheek  with  the  let- 
ter B.  Provided  nevertheless,  that  if  the  offender  be  a  woman,  it 
,  shall  be  discretionary  with  the  court  to  inflict  all  or  any  of  the 
aforesaid  punishments,  branding  excepted  :  Provided  always,  that 
this  section  shall  not  extend  to  any  person  or  persons,  whose  hus- 
band or  wife  shall  continually  remain  beyond  sea  for  the  space  of 
seven  years  together,  nor  to  any  person  or  persons,  whose  husband 
or  wife  shall  absent  him  or  herself  in  any  other  manner  for  the 
space  of  seven  years  together,  such  person  or  persons  not  know- 
ing his  or  her  said  husband  or  wife  to  be  living  within  that  time  : 
Jlnd  provided  also,  that  this  section  shall  not  extend  to  any  per- 
son or  persons,  who  are  or  shall  be,  at  the  time  of  such  after  mar- 
riage, divorced  according  to  the  mode  established  or  which  here- 
after shall  be  established  by  law,  nor  to  any  person  or  persons 
whose  former  marriage  is  declared  by  law  to  be  void  and  of  no 
effect,  nor  to  any  person  or  persons  for  or  by  reason  of  any  for- 
mer marriage  had  or  made  within  the  age  of  consent. 

12.  1779,  c.  142,  s.  2. 

13.  1754,  c.  56.— 1791,  c.  339,  s.  1.— 1831,  c.  12. 

14.  1790,  c.  323.— 1809,  c.  733.-1829,  c.  9. 

VOL.  I.  25 


194  CRIMES  AND  PUNISHMENTS.   [ChAP.  XXXIV. 

Horsestealing,      15.   If  any  person  shall  feloniously  steal  any  horse,  mare,  geld- 
how  pumsh-     jj^g^  jackass,  or  mule,  he  shall    suffer  death,  as    in    other  cases   of 
felony  :  Provided,  that  he  shall  be  entitled  to  the  benefit  of  his  clergy, 
in  the  same  manner  and  to  the  same  extent  as  in  cases  of  felony  at 
common  law. 
Burningbrid-  jg_   jf  any  person  or  persons  shall  hereafter   wilfully  and   mali- 

sres  how  pun-        .  </  r  r  ^  ^  j 

ishable.  ciously  set  fire  to  and  burn  any  public  bridge,  or  private  toll  bridge, 

with  an  intent  to  destroy  the  same,  he,  she  or  they  shall  be  deemed 
guilty  of  felony,  and  shall  be  punished  accordingly. 
Circulating  se-       17.   If  any  person  shall  knowingly  bring  into  this  State,  with  an 
^onTamon?'^^  intent  to  circulate,  or  knowingly  circulate  or   publish   within   this 
slaves,  how       State,  Or  shall  aid  or  abet  the  brinffina;  into  this  State  or  the  circu- 
pumsnaoie.       lation  or  publication  within  the  State,  any  written  or  printed  pam- 
phlet or  paper,  whether  written  or  printed  in  or  out  of  the   State, 
the  evident  tendency  whereof  would   be    to    excite    insurrection, 
conspiracy  or  resistance  in  the  slaves  or  free  negroes  and    persons 
of  color  within  the  State,  or  which  shall  advise  or  persuade  slaves 
or  free  persons  of  color  to  insurrection,  conspiracy  or  resistance, 
such  person  so  offending  shall  be    deemed   guilty    of  felony,  and, 
on  conviction  thereof  in    any    court    having  jurisdiction  thereof, 
shall  for  the  first  offence  be  imprisoned  not  less  than  one  year  and 
be  put  in  the  pillory  and  whipped,'^  at  tBe  discretion    of  the  court, 
and  for  the  second  offence   shall    suffer   death  without   benefit  of 
clergy. 
Endeavoring  to      18.   If  any  person  shall,  by  words,  endeavor  to  excite  in  any  slave 
excite  insurrec- or  slaves,  or  free  negro   or  person  of  color,  a   spirit   of  insurrec- 
slaveshy  °       tiou,  Conspiracy  or  rebellion,  such  person  shall  be  deemed   guilty 
^°'^'*h  ^wT       ^^  felony,  and,  on  conviction  thereof  in  any    court    having    cogni- 
zance thereof,  shall  be  sentenced  to  receive  thirtynine  lashes  on  his 
or  her  bare  back  and  be  imprisoned  for  one  year,  and  for  the  second 
offence  shall  suffer  death  without  benefit  of  clergy. 
Servants  em-         19.   If  any  servant,  to  whom  any  casket,  jewels,  money,  goods 
maste?!  goods  ^^  Other  chattels  by  his  or  her  master  or  mistress  shall  be  dehvered, 
how  punish-      safely  to  be  kept  to  the  use  of  his  or    her  master  or  mistress,  shall 
*  ^'  withdraw  him  or  herself  from  his  or  her  master  or  mistress  and  go 

away  with  the  said  casket,  jewels,  money,  goods  or  other  chattels, 
or  any  part  thereof,  with  intent  to  steal  the  same  and  defraud  his 
or  her  master  or  mistress  thereof,  contrary  to  the  trust  and  confi- 
dence in  him  or  her  put  by  his  or  her  said  master  or  mistress,  or 
else  being  in  the  service  of  his  or  her  master  or  mistress,  without 
assent  or  commandment  of  his  or  her  said  master  or  mistress,  he 
or  she  embezzle  the  same  casket,  jewels,  money,  goods  or  other 
chattels,  or  any  part  thereof,  or  otherwise  convert  the  same  to  his 
or  her  own  use  with  like  purpose  to  steal  them,  provided  the  said 
casket,  jewels,  money,  goods  or  chattels,  that  any  such  servant 
shall  so  go  away  with,  or  which  he  shall  embezzle  with  purpose  to 
steal  as  aforesaid,  be  of  the  value  of  ten  dollars  and  upwards,  then 

15.  1790,  c.  324.— 1817,  c.  934. 

.  16.  1825,  c  1278. 

ir.  1830,  C.  5,  s.  1. 

18.  1S30,  c,  5,  S.  2. 

19.  21  Hen.  8,  c.  7,  8.  1  and  2. 


Chap.  XXXIV.]  crimes  and  punishments.  195 

the  same  false,  fraudulent  and  untrue  act  or  demeanor,  shall  be 
deemed  and  adjudged  felony  ;  and  he  or  she  so  offending  shall  be 
punished,  as  other  felons  are  punished  for  felonies  committed  by  the 
course  of  the  common  law  :  Provided,  that  nothing  in  this  section 
contained  shall  extend  to  apprentices,  or  to  servants  within  the  age 
of  eighteen  years. 

20.  No  person  that  breaks  prison  shall  have  judgment  of  life  or  Breaking  pris- 
member  for  the    breaking  of  prison    only,  unless    the    crime,  for  capital  offence, 
which  he  was  arrested  and  imprisoned,  would  have  required  such 
judgment,  if  he  had  been  convicted  thereof  according  to  law. 

21.  If  any  person  or  persons,  of  their  own  head  and    iniagina- pu^s^lbie."^ 
tions,  or    by  false  conspiracy  or  fraud  with  others,  shall    wittingly 

and  falsely  forge  and  make,  or  shall  cause  or  wittingly  assent  to  be 
fo]ged  or  made,  or  shall  shew  forth  in  evidence,  knowing  the  same 
to  be  forged,  any  deed,  lease,  or  will,  or  any  bond,  writing  oblig- 
atory, bill  of  exchange,  promissory  note,  endorsement  or  assign- 
ment thereof,  or  any  acquittance  or  receipt  for  money  or  goods, 
or  any  receipt  or  release  for  any  bond,  note,  bill  or  any  other  se- 
curity for  the  payment  of  money,  or  any  order  for  the  payment  of 
money  or  delivery  of  goods,  with  intent,  in  either  or  any  of  the 
said  instances,  to  defraud  any  person  or  corporation,  and  thereof 
shall  be  convicted  in  any  of  the  superior  courts  of  law  in  this  State, 
such  person  so  offending  shall,  for  the  first  offence,  be  adjudged  to 
stand  in  the  pillory  one  hour,  and  receive  thirtynine  lashes  on  his 
bare  back,  and  be  imprisoned  not  less  than  six  months,  and  fined 
at  the  discretion  of  the  court  ;  and  for  the  second  offence,  shsllj 
on  conviction,  suffer  death,  without  benefit  of  clergy. 

22.  When  any  person  shall  be  convicted  of  the  crime  of  grand  A^'^'tio°"|.P™- 
larceny,  he  or  she  shall  be  infamous  and    deprived    of  his  or   her  grand  larceny, 
free  law,  in  the  same  manner  as  persons  now  are  who  are  convicted 

of  petit  larceny. 

23.  If  any  person  or  persons  shall   feloniously   steal,  take  and  Rottery  of,  or 
carry  away,  or  take  by  robbery,  any  bank  note,  check  or  order  for  notes"&c.^how 
the  payment  of  money  issued  by  or  drawn  on  any  bank,  or    other  punishable, 
society  or  corporation  within  this  State  or  within  any  of  the  United 

States,  or  any  treasury  warrant,  debenture,  certificate  of  stock, 
or  other  pubhc  security,  or  any  order,  bill  of  exchange,  bond, 
promissory  note,  or  other  obligation,  either  for  the  payment  of 
money,  or  for  the  delivery  of  specific  articles,  being  the  prop- 
erty of  any  other  person  or  persons,  or  of  any  corporation, 
(notwithstanding  any  of  the  said  particulars  may  be  termed  in  law 
a  chose  in  action)  such  felonious  stealing,  taking  and  carrying 
away,  or  taking  by  robbery,  shall  be  deemed  and  construed  to  be 
felony  of  the  same  nature  and  in  the  same  degree,  and  with  or 
without  benefit  of  clergy,  in  the  same  manner  as  it  would  have 
been,  if  the  offender  or  ofienders  had  feloniously  stolen,  or  taken 
by  robbery,  money,  goods  or  property  of  like  value  with  the  money 
or  specific  articles  due  or   expressed  on   the  face  of  such   bank 

20.  1  Edw.  2. 
I  21.   1801,0.  572. 

22.  1833,  c.  20. 

23.  13U,  C.  314,  S.  I. 


196  CRIMES  AND  PUNISHMENTS.  [ChAP.  XXXIV. 

note,  check,  order,  treasury  warrant,  debenture,  certificate  of 
stock,  public  security,  order,  bill  of  exchange,  bond,  promissory 
note,  or  other  obligation,  as  aforesaid,  or  secured  thereby  and 
remaining  unsatisfied  ;  and  such  offender  or  offenders,  for  each 
and  every  such  offence,  being  thereof  legally  convicted,  shall  suf- 
fer such  punishment  and  be  subject  to  the  same  pains,  penalties 
and  disabilities,  as  he,  she  or  they  should  or  might  have  suffered, 
if  such  offender  on  offenders  had  feloniously  stolen  or  taken  by 
robbery,  money,  goods,  or  other  property  of  the  hke  value  with 
the  money  or  specific  articles  due  or  expressed  on  the  face  of 
such  bank  note,  check,  order,  treasury  warrant,  debenture,  certifi- 
cate of  stock,  public  security,  bill  of  exchange,  bond,  promissory 
note,  or  other  obligation,  respectively,  or  secured  thereby  and 
remaining  unsatisfied. 
Stealing  gro-w-  24.  The  Stealing  or  feloniously  taking  and  carrying  away  any 
larceny?'  *^  growing.  Standing  or  ungathered  Indian  corn,  or  wheat,  cotton, 
potatoes  or  rice  shall  hereafter  be  held  and  deemed  larceny  ;  and 
any  person  who  shall  hereafter  steal,  or  feloniously  take,  pluck, 
sever  and  carry  away,  any  Indian  corn,  or  wheat,  cotton,  potatoes 
or  rice,  growing,  standing  or  remaining  ungathered  in  any  planta- 
tion, field,  or  other  ground,  shall,  on  conviction  thereof,  be  deemed 
guilty  of  larceny,  and  suffer  punishment,  as  in  other  cases  of  lar- 
ceny. 
Benefit  of  cler-      25.  No  person,  who  hath  once  been  admitted  to  the  benefit  of 

.,■11  J.  ' 

Swed  twice. ^ ' ^^^  clergy,  and  shall  afterward  be  arraigned  or    convicted    for  any 
clergiable  offence,  subsequently   committed,  shall  be   admitted   to 
have  privilege  or  benefit  of  his  clergy. 
Punishment  26.  Where  any  person  shall,  upon  conviction  of  any  felony,  be 

offences^^  t    allowed  his  benefit  of  clergy,   he  shall,  if  it   be    manslaughter,  be 
marked  with  an  M  upon  the  brawn  of  the  left  thumb,  and   if  any 
other  felony,  with  a  T  on   the    same  place  of  the  thumb  —  these 
marks  to  be  made  by  the  sheriff  openly   in  the   court   before  the 
judge,  before  such  person  be  discharged  ;  or  it  shall   be    in  the 
power  of  the  court,  before  which  such  conviction  was  had,  instead 
of  burning  the  hand  of  such  convict,  to  order  and  adjudge  him  or 
her  to  receive  one  or  more  pubhc  whippings,  or  to  pay  a  moderate 
pecuniary  fine,  in  the  discretion  of  said  court  under  all  of  the  cir- 
cumstances of  the  case,  the  entry  of  whichjudgment  shall  have  the 
same  legal  effects  and  consequences,  to  all  intents  and   purposes, 
as  if  the  person  so   convicted  had  been   burned  in    the    hand  in 
presence  of  the  court. 
Howofienders       27.  Every  person,  that  shall  be  allowed  or  admitted  to  have  the 
with  after\av- ^^nefit  or  privilege  of  his  clergy,  shall,  after  such   clergy  allowed 
ingbeenai-      and  burning  in  the  hand,  or   other   punishment,  according   to    the 
clergy.^  ^"^      preceding  section  of  this  act,  be  forthwith  enlarged  and  delivered 
out  of  prison  by  the    court   before   whom    such    clergy    shall   be 
granted  :  Provided  nevertheless,  that  the  court,  before  whom   any 
such  allowance  of  clergy  shall  be  had,  shall  and    may,  for  the  fur- 

24.  1S11,C.  816. 

25.  4  Hen.  7,  c.  13. 

25.  4  Hen.  7,  c.  13.— 1816,0.  918. 
27.  ISEliz.  c.  r,  s.  2  and  3. 


Chap.  XXXIV.]  crimes  and  punishments.  197 

ther  correction  of  such  person,  to  whom  such  clergy  shall  be 
allowed,  detain  and  keep  him  in  prison  for  such  convenient  time, 
as  the  said  court  in  its  discretion  shall  think  proper,  so  as  the  same 
do  not  exceed  one  year's  imprisonment. 

28.  Every  person,  that  shall,  upon  his  arraignment  for  any  felo-  Benefit  of 
ny,  be  admitted  to  the   benefit  of  his  clergy,   and  shall,   before  noTfelease 
such  admission  to  his  clergy,  have  committed  any  other  offence,  from  an  of- 
whereupon  clergy,  by  the  laws  of  this   State,  is  not  allowed,  and  glabie^pr^-^'^" 
not  being  thereof  before  indicted  and  acquitted,  convicted  or  par-  viously  com- 
doned,  shall  and  may  be  indicted  and  tried  for  the  same,  in  the  ""^ 

same  manner,  and  the  same  judgment  shall  be  rendered  upon  such 
trial,  as  though  no  such  admission  of  clergy  had  been. 

29.  In  every  case  where  a  man,  being  convicted  of  any  felony,  ^j'^^'l^^^t 
may  demand  the  benefit  of  his  clergy,  if  a  woman  be  convicted  of  of  clergy, 
the  same  or  like  offence,  upon  her  prayer,  judgment  of  death  shall 

not  be  given  against  her,  but  she  shall  suffer  the  same  punishment 
as  a  man  should  suffer,  who  has  the  benefit  of  his  clergy  allowed 
him  in  the  like  case. 

30.  If  any  woman  be  delivered  of  issue  of  her  body,  male  or  C'°'V=eahng  the 
female,  which,  being  born  alive,  should  by  the  laws  of  this  State  tard  child,  how 
be  a  bastard,  and  she  endeavors  privately,  either  by  drowning  or  punishable, 
secret  burying  thereof,  or  any  other  way,   either  by  herself  or  the 
procuring  of  others,  so  to  conceal  the  death  thereof,  as  that  it  may 

not  come  to  light,  whether  it  were  born  ahve  or  not  but  be  con- 
cealed, in  every  such  case,  the  said  mother,  so  offending,  shall  be 
deemed  guilty  of  a  misdemeanor,  and,  on  conviction  thereof,  shall 
be  punished  by  a  fine  not  exceeding  five  hundred  dollars,  and  an 
imprisonment  not  exceeding  twelve  months ;  and  the  superior 
courts  of  law  within  this  State  shall  have  exclusive  jurisdiction  of 
the  offence  created  by  this  section  :  Provided,  that  nothing  in  this 
section  contained  shall  be  construed  to  prevent  the  mother,  who 
shall  be  guilty  of  the  murder  of  her  illegitimate  child,  from  being 
liable  to  prosecution,  conviction  and  punishment  thereof,  agreea- 
bly to  the  principles  of  the  common  law. 

31.  No  forfeiture  shall  be  incurred  by  suicide  or  self  murder,  but  Forfeiture  ^or 
administration  may  be  applied  for  and  granted  as  in  the  cases  of ished. 
natural  and  ordinary  death,  and  debts  shall  be  paid  and  distribution    / 

made  agreeably  to  the  laws,  that  are  or  may  be  made  and  provided 
for  the  management  and  distribution  of  the  estates  of  persons  dying 
intestate. 

32.  If  any  person  or  persons  shall  wilfully  and  maliciously  at-^**^"^?^  \*',. 

•^    r  .      r  J  J  hurn  a  public 

tempt  to  burn,  by  settmg  fire  thereto,  the  state   house,  or  any  oi  building,  how 
the  public  offices  of  this  State,  or  any  court  house,  jail,  arsenal.  Punishable. 
clerk's  office,  register's  office,  fire  engine  house,  or  public  bridge 
in  this  State,  or  any  house  used  for  pubhc  purposes,  belonging  to 
any  incorporated  town  in  this  State,  he,  she,  or  they  shall  receive 
thirtynine  lashes   on  his  or  her  bare  back,  stand  in  the  pillory  one 


28. 

8  Ehz.  c  4,  s.  4. 

29. 

1806,  c.  697,  s.  2. 

30. 

1818,  C.  985. 

31. 

irsr,  c.  250. 

32. 

1830,  c.  41,  s.  2. 

198  CRIMES  AND  PUNISHMENTS.  [ChAP.  XXXIV. 

hour  at  least,  and  be  fined  and  imprisoned  at  the  discretion  of  the 
court  before  whom  he  or  she  may  be  convicted. 
Embezzling  33.   jf  any  person  shall  steal,  or  shall,  for  any  fraudulent  pur- 

how  punish-     pose,  take  from  its  place  of  deposit  for  the  time  being,  or  from 
able.  any  person  having  the  lawful  custody  thereof,  or  shall  unlawfully 

and  mahciously  obhterate,  injure,  or  destroy,  any  record,  writ,  re- 
turn, panel,  process,  interrogatory,  deposition,  affidavit,  rule,  or- 
der, or  warrant  of  attorney,  or  any  original  document  whatsoever, 
of  or  belonging  to  any  court  of  record  or  relating  to  any  matter, 
civil  or  criminal,  begun,  depending  or  terminated  in  any  such 
court,  or  any  bill,  answer,  interrogatory,  deposition,  affidavit,  or- 
der, or  decree,  or  any  original  document  whatsoever,  of  or  belong- 
ing to  any  court  of  equity,  or  relating  to  any  cause  or  matter,  be- 
gun, depending  or  terminated  in  any  such  court,  every  such  offender 
shall  be  guilty  of  a  misdemeanor,  and,  on  conviction,  shall  be  fined, 
or  imprisoned,  or  both,  at  the  discretion  of  the  court, 
fe'lfin'^^^oflices  ^'^'  ^^  ^"^  person  or  persons  shall  bargain  or  sell  any  office  or 
prohibited,  and  offices,  or  deputation  of  any  office  or  offices,  or  any  part  or  parcel 
able^^"^^*^'  of  any  of  them,  or  receive,  have,  or  take  any  money,  fee,  reward, 
or  any  other  profit,  directly  or  indirectly,  for  any  office  or  offices, 
or  for  the  deputation  of  any  office  or  offices,  or  any  part  of  any  of 
them,  or  to  the  intent  that  any  person  should  have,  exercise  or 
enjoy  any  office  or  offices,  or  the  deputation  of  any  office  or  offices, 
or  any  part  of  any  of  them,  which  office  or  offices,  or  any  part  or 
parcel  of  them,  shall  in  any  wise  touch  or  concern  the  administra- 
tion or  execution  of  justice,  or  the  receipt,  collection,  controlment 
or  disbursement  of  the  public  revenue,  or  which  shall  concern  or 
touch  any  clerkship  in  any  court  of  record,  wherein  justice  is  ad- 
ministered— all  and  every  such  person  and  persons,  that  so  bargain 
and  sell  any  of  the  said  offices  or  deputations,  or  that  shall  take 
any  money,  fee,  reward  or  profit  for  any  of  the  said  offices,  or 
deputations  of  any  of  the  said  offices,  or  any  part  of  any  of  them, 
or  that  shall  take  any  promise,  covenant,  bond  or  assurance  for 
any  money,  reward  or  profit,  to  be  given  for  any  of  the  said  offices, 
or  deputations  of  any  of  the  said  offices,  or  any  part  of  any  of 
them,  shall  lose  and  forfeit  all  his  and  their  right,  interest  and  es- 
tate, which  such  person  or  persons  shall  then  have,  of,  in  or  to  any 
of  the  said  offices,  or  deputations,  or  any  part  of  any  of  them,  for 
the  which  office  or  offices,  or  for  the  deputation  or  deputations  of 
which  office  or  offices,  or  for  any  part  of  any  of  them,  any  such 
person  or  persons  shall  so  make  any  bargain  or  sale,  or  take  and 
receive  any  money,  fee,  reward  or  profit,  or  any  promise,  cove- 
nant or  assurance  to  have  or  receive  any  fee,  reward,  money  or 
profit  :  and  all  and  every  person  or  persons,  that  shall  give  or  pay 
any  sum  of  money,  fee  or  reward,  or  shall  make  any  promise, 
agreement,  bond  or  assurance  for  any  of  the  said  offices,  or  for  the 
deputation  or  deputations  of  any  of  the  said  offices,  or  any  part  of 
any  of  them,  shall  immediately,  by  and  upon  the  same  fee,  money 
or  reward  given  or  paid,  or  upon  any  such  promisej  covenant, 

33.  8  Hen.  6,  c.  12.    Amended. 

34.  5  and  6  Edw.  6,  c.  16,  s.  1  and  5. 


Chap.  XXXIV.]  crimes  and  punishments.  199 

bond  or  agreement  had  or  made  for  any  fee,  sum  of  money  or  re- 
ward to  be  paid  as  aforesaid,  be  adjudged  a  disabled  person  in  the 
law,  to  all  intents  and  purposes,  to  have,  occupy  or  enjoy  the  said 
office  or  offices,  deputation  or  deputations,  or  any  part  of  any  of 
them,  for  the  which  such  person  or  persons  shall  so  give  or  pay 
any  sum  of  money,  fee  or  reward,  or  make  any  promise,  covenant, 
bond  or  other  assurance  to  give  or  pay  any  sum  of  money,  fee  or 
reward  :  Provided^  that  if  any  person  or  persons  do  offend  in  any 
thing  contrary  to  the  intent  and  effect  of  this  section,  yet,  notwith- 
standing, all  judgments  given,  and  all  other  act  and  acts,  executed 
or  done  by  any  such  person  or  persons  so  offending,  by  authority 
or  color  of  the  office  or  deputation,  which  ought  to  be  forfeited,  or 
not  occupied  or  not  enjoyed  by  the  person  so  offending  as  is  afore- 
said, after  the  offence  so  by  such  person  committed,  and  before 
such  person,  so  offending,  for  the  same  offence  be  removed  from 
the  exercise,  administration  and  occupation  of  the  said  office  or 
deputation,  shall  be  and  remain  good  and  sufficient  in  law,  to  all 
intents,  constructions  and  purposes,  in  such  like  manner  and  form 
as  the  same  should  or  ought  to  have  remained  and  been,  if  this 
section  of  this  act  had  never  been  passed. 

35.  If  any  juror,  by  himself  or  others  for  him,  do  take  any  thing  Punishment  of 
from  any  plaintiff  or  defendant  in  a  civil  suit  or  others  for  them,  oi'laidn^o- ^bribes 
from   any  defendant  in  a  state  prosecution  or  others  for  him,  to  and  ot  those' 
give  his  verdict,  every  such  juror,  being  convicted  thereof,  shall  J^^^"^^ 

be  fined  or  imprisoned,  or  both,  at  the  discretion  of  the  court  ; 
and  any  person,  who  shall  give  any  juror  any  fee  or  reward  to 
influence  his  verdict,  or  induce  or  procure  him  to  make  any  gain 
or  profit  by  his  verdict,  shall,  on  conviction  of  such  offence,  be 
fined  or  imprisoned,  or  both,  at  the  discretion  of  the  court. 

36.  When  any  person,  charged  with  any  crime  or  misdemeanor  Sheriff  or  other 
whatsoever,  shall  be  legally  committed  to  any  sheriff,  deputy  sher- °'^^j^j^^"'["q"° 
iff,  constable  or  jailer  within  this   State,  and  such  sheriff,  deputy  escape,  how- 
sheriff,  constable  or  jailer  wilfully  or  negligently  shall  suffer  suchP"''^^ 
person,  so  charged  and  committed,  to  escape  out  of  his  custody, 

the  sheriff,  deputy  sheriff,  constable  or  jailer,  so  offending,  being 
thereof  lawfully  convicted,  shall  be  removed  from  office,  and  fined  - — " 
at  the  discretion  of  the  court  before  whoin  the  trial  may  be  had  :  and 
in  all  such  cases  it  shall  be  sufficient,  in  support  of  the  indictment 
against  such  sheriff,  deputy  sheriff,  constable  or  jailer,  to  prove 
that  such  person  so  charged  was  committed  to  his  custody,  and  it 
shall  lie  upon  the  defendant  to  show  that  such  escape  was  not  by 
his  consent  or  negligence,  but  that  he  had  used  all  legal  means  to 
prevent  the  same,  and  acted  with  proper  care  and  diligence  ;  and 
when  a  sheriff  shall,  in  consequence  of  conviction  under  this  act, 
be  removed  from  office,  the  justices  of  the  court  of  pleas  and  quarter 
sessions  of  the  county,  for  which  such  sheriff  had  been  appointed, 
are  hereby  authorized,  upon  such  conviction  and  removal,  to  elect 
and  nominate  a  freeholder  as  required  by  law,  to  execute  the  office 
of  sheriff  until  the  next  election  :  Provided,  that   such  removal  of 

35.  5  Edw.  3,  c.  10.— 34  Edw.  3,  c.  8.— 38  Edw.  3,  c.  12. 

36.  1791,  c.  343,  s.  1. 


200 


CRIMES  AND  PUNISHMENTS.  [ChAP.  XXXIV. 


Duty  of  the  at- 
torney general 
and  solicitors 
in  such  cases. 


Breaking  up 
an  election, 
how  punish- 
able. 


Public  commis- 
sioners becom- 
ing contractors, 
to  be  guilty  of 
a  misdemeanor. 


Overseers  of 
roads  to  be  in- 
dicted for  neg- 
lect of  duty. 


Owners  of 
■water  mills 
subject  to  in- 
dictment for 
not  keeping  up 
bridges. 


Persons  not 
keeping  lawful 
fences,  liable  to 
indictment. 


a  sheriff  shall  not  affect  his  duty  or  power  as  a  collector  of  the  public 
revenue,  but  he  shall  proceed  on  such  duty  and  be  accountable  as 
if  such  conviction  and  removal  had  not  been  had. 

37.  It  shall  be  and  it  is  hereby  declared  to  be  a  part  of  the  duty 
of  the  attorney  general,  or  one  of  the  solicitors,  as  the  case  may 
be,  when  they  shall  be  informed,  or  have  knowledge  of  any  felon, 
or  person  otherwise  charged  with  any  crime  or  offence  against 
the  State,  having  escaped  out  of  the  custody  of  any  sheriff,  deputy 
sheriff,  constable  or  jailer,  to  take  the  necessary  measures  to  pros- 
ecute such  sheriff,  deputy  sheriff,  constable  or  jailer,  so  offending, 
and  on  all  indictments  in  such  cases  he  may  endorse  the  governor 
for  the  time  being  as  prosecutor. 

38.  If  any  person  shall  by  force  and  violence  break  up  any  elec- 
tion, by  assaulting  the  officers  thereof,  or  depriving  them  of  the 
ballot  boxes,  such  person,  his  aiders  and  abettors,  shall  be  judged 
guilty  of  a  misdemeanor,  and  upon  conviction  shall  suffer  three 
months  confinement  in  jail,  there  to  remain  without  bail  or  main- 
prise and  until  he  pay  such  fine  as  the  court,  before  whom  such 
conviction  is  made,  shall  judge,  not  exceeding  one  hundred  dol- 
lars, and  all  costs  and  charges. 

39.  No  person,  who  now  is  or  hereafter  may  be  appointed  a 
commissioner  or  director  to  discharge  any  trust,  wherein  the  State 
may  be  in  any  manner  interested,  shall  become  an  undertaker,  or 
make  any  contract  for  his  own  benefit,  under  such  appointment, 
or  be  in  any  manner  concerned  or  interested  in  making  such  con- 
tract, or  in  the  profits  thereof,  either  privately  or  openly,  singly  or 
jointly  with  another  ;  and  if  such  person  shall  do  so,  he  shall  be 
deemed  guilty  of  a  misdemeanor,  and,  upon  conviction  by  in- 
dictment in  any  court  having  cognizance  thereof,  shall  be  subject 
to  fine  and  imprisonment  at  the  discretion  of  the  court. 

40.  Every  overseer  of  a  road,  who  shall  be  guilty  of  neglecting 
or  violating  the  duties  imposed  upon  him  by  any  act  of  the  Gen- 
eral Assembly,  shall  be  subject  to  indictment  therefor,  and,  on 
conviction,  shall  be  fined  at  the  discretion  of  the  court  before 
whom  he  is  tried. 

41.  All  owners  of  water  mills,  whose  mill  is  situated  on  any 
public  road,  who  shall  refuse  or  neglect  to  keep  up  and  repair,  or 
who  shall  suffer  to  remain  out  of  repair  for  the  space  of  ten  days, 
any  bridge,  which  by  law  they  ai-e  required  to  keep  up  and  repair, 
shall  be  subject  to  indictment  therefor  as  for  a  misdemeanor,  and, 
on  conviction,  shall  be  fined  at  the  discretion  of  the  court. 

42.  All  persons  neglecting  to  keep  and  repair  their  fences 
during  crop  time,  in  the  manner  required  by  an  act  concerning 
fences,  passed  at  this  present  session,  shall  be  liable  to  be  indicted, 
and,  upon  conviction  for  such  offence,  shall  pay  such  fine  as  the 
court  shall  think  proper  to  impose,  not  exceeding  one  hundred 


37.  1791,  c.  343,  s.  2. 

3S.  1793.  c.  382,  s.  2. 

39.  1826,  c.  29.— 1825,  c.  1269. 

40.  1786,  c.  256,  s.  4. 

41.  1819,  c.  941,  s.  3.   ' 

42.  1777,  c.  121.— 1791,  C.  354,  s.  1. 


■<?m 


Chap.  XXXIV.]  crimes  and  punishments.  201 

dollars,  which  fine  shall  be  to  the  use  of  the  wardens  of  the  poor 
of  the  county  wherein  the  recovery  shall  have  been  had  :  Pro- 
vided^ that  the  concurring  testimony  of  three  indifierent  witnesses 
shall  be  necessary  to  conviction. 

43.  If  any  person  shall  erect  a  buildina;  on  any  public  lands  in  Persons  tres- 

T  ■     n,  /  I-  1  1111  1  •  1  1  1  J  passing  on  the 

this  btate,  beiore  the  same  shall  have  been  either  sold  or  granted  public  lands,  li- 
by  the  State,  or  cultivate  or  remove  timber  from  the  same,  such  ^^^^^°  ^^'^^'^'^" 
person  shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  convic- 
tion, shall  be  fined  or  imprisoned  at  the  discretion  of  the  court ; 
and  when  any  person  or  persons  shall  be  in  possession  of  any  part 
of  said  land,  it  shall  be  the  duty  of  the  sherifif  of  the  county,  in 
which  such  land  is  situated,  and  he  is  hereby  required,  to  give 
notice  in  writing  to  such  person  or  persons,  commanding  them  to 
depart  therefrom  forthwith  ;  and  if  such  person  or  persons  in 
possession,  upon  being  so  notified,  shall  not,  within  two  weeks 
after  the  time  of  notice,  remove  therefrom,  the  sheriff  is  hereby 
empowered  and  required  to  remove  him,  her  or  them  immediately, 
and  if  it  shall  be  necessary,  to  summon  his  posse-comitatus  to  aid 
and  assist  him  in  so  doing. 

44.  If  any  person  or  persons,  who  have  no  apparent  means  of  P""'®'^'"®"^  °^ 
subsistence,  or  neglect  applying  themselves  to  some  honest  calling    ^ 

for  the  support  of  themselves  and  families,  shall  be  found  saunter- 
ing about,  and  endeavoring  to  maintain  themselves  by  gaming  or 
other  undue  means,  it  shall  and  may  be  lawful  for  any  justice  of  /  CrAJ)  /  /^  / 
the  peace  of  the  county,  wherein  such  person  may  be  found,  on 
due  proof  made,  to  issue  his  warrant  for  such  offending  person, 
and  cause  him  to  be  brought  before  said  justice,  who  is  hereby 
empowered,  on  conviction,  to  demand  security  for  his  or  their 
good  behavior,  and  in  case  of  refusal  or  neglect,  to  commit  him 
or  them  to  the  jail  of  the  county  for  any  term  not  exceeding  ten 
days,  at  the  expiration  of  which  time  he  shall  be  set  at  liberty  if 
nothing  criminal  appears  against  him,  the  said  offender  paying  all 
charges  arising  from  such  imprisonment  ;  and  if  such  person  be 
guilty  of  the  like  offence  from  and  after  the  space  of  twenty  days, 
he  or  they  so  offending  shall  be  deemed  a  vagrant,  and  be  subject 
to  one  month's  imprisonment,  with  all  costs  accruing  thereon, 
which  if  he  neglects  or  refuses  to  pay,  he  may  be  continued  in 
prison  until  the  next  court  of  the  county,  which  may  proceed  to 
try  the  said  offender,  and  if  found  guilty  by  a  verdict  of  a  jury  of 
good  and  lawful  men,  said  court  may  proceed  to  hire  the  offender 
for  any  time,  not  exceeeding  the  space  of  six  months,  to  make 
satisfaction  for  all  costs  :  but  if  such  person  or  persons  be  of  ill 
fame,  so  that  he  or  they  cannot  be  hired  for  the  costs,  nor  give 
sufficient  security  for  the  same  and  his  or  their  future  good  be- 
havior, in  that  case  it  shall  and  may  be  lawful  for  said  court  to 
cause  the  offender  or  offenders  to  receive  thirtynine  lashes  on  his 
or  their  bare  back,  after  which  he  or  they  shall  be  set  at  liberty, 
and  the  costs  arising  thereon  shall  become  a  county  charge,  which 

43.  1823,  c.  1190. 

44.  1734,  c.  213,  s,  2. 

VOL.   I.  26 


202  CRIMES  AND  PUNISHMENTS.   [ChAP.  XXXIV. 

punishment  may  be  inflicted  as  often  as  the  person  may  be  guilty, 
allowing  twenty  days  between  the  punishment  and  the  offence. 
Punishment  4^'   ^^  ^W  pe^son   shall  liawk  or  peddle  any  goods,  wares  or 

for  hawking  merchandise,  (books  and  prints  excepted,)  or  any  wooden  clock 
without  a  U?  ^^  the  machinery  or  materials  thereof,  such  articles  not  being  of 
cense.  the  growth,  produce  or  manufacture  of  this  State,  in  any  county, 

without  having  previously  paid  the  tax  and  obtained  the  license  re- 
quired by  law,   or  shall  refuse  or  neglect  upon  the  application  of 
the  sheriiF  or  his  lawful  deputy  or  any  justice  of  the  peace  to  shew 
such  hcense,  he  shall  be  subject  to  indictment,  and,  on  conviction, 
shall  be  fined  or  imprisoned  at  the  discretion  of  the  court. 
Fornication  and      46.   The  crimes  of  fornication   and  adultery,  where  a  man  shall 
punishable"^    ^^^^  ^  woman  into  his  house  or  a  woman  a  man,   and  they   shall 
have  one  or  more  children  without  parting  or  an  entire  separation, 
or  where  it  shall  be  proved  to  the  satisfaction  of  the  court  and  ju- 
ry, before  whom  it  shall  be  tried,  that  they  bed  or  cohabit  togeth- 
er,  shall  be  deemed  and  held  indictable  offences  and  cognizable 
before  any  of  the  superior  or  county  courts  in  this  State  ;  and  any 
person,  legally  convicted  of  either  of  the  aforesaid  offences,  shall  be 
fined  at  the  discretion  of  the  court  before  whom  he  or  she  may  be 
tried,  in  any   sum  not  exceeding  two  hundred  dollars.     Provided 
always,   that  the  evidence  of  the  person,  who  may  be  particeps 
criminis,  shall  not  be  admitted  to  charge  any   defendant  under  this 
section. 
Marrying  a  fe-       47.     If  any  person  shall  marry  a  female  infant  under  the  age  of 
male  under       fifteen  years,  the  person  so  offending  shall  be  deemed  guilty  of  an 
the  written  con- iiidictable  offence,   and  on   conviction  shall  be  fined  at  the  discre- 
sent  of  her       tion  of  the  court  :  Provided,  that  this  act  shall  not  extend  to  cases 
able  '  in  which  the  father  of  the  female  shall  be  living,   and  p,hall  have, 

previous  to  the  marrying,   consented  thereto  in  writing,   and  the 
superior  courts  of  law  shall  liave  exclusive  jurisdiction  of  this  of- 
fence- 
Unlawful  48.   If  any  person  shall,  on  purpose  and  unlawfully    but  without 
maiming  with-  malice  aforethought,  cut  or  slit  the  nose,  bite  or  cut  off  a  nose  or 
puniThable.  °^  ^^P?  t>ite  or  cut  off  an  ear,  or  disable  any  limb  or  member  of  any 
other  person,   or  castrate  any  other  person,   or  cut  off,  maim  or 
disfigure  any  of  the  privy  members  of  any  other  person,  with  in- 
tent to  murder,  maim,  disfigure,   disable  or  render  impotent  such 
person,  in  any  such  case  the  person  or  persons  so  offending  shall, 
on  conviction  thereof,  be  imprisoned  for  the  space  of  six  months 
and  fined  at  the  discretion  of  the  court,  before  whom  such  offence 
shall  be  tried. 
Punishment  49.  No  person   sending,   accepting  or  being  the  bearer  of  a 
cepthig  ^0T°heaT-  challenge  for  the  purpose  of  fighting  a  duel,  though  no  death  en- 
ing  a  challenge  sues,  shall  ever  after  be  eligible  to  any  office   of  trust,   honor  or 
to  ng  t  a  ue .  ^^^^^  jj^  ^j^jg  State,    any  pardon  or  reprieve   notwithstanding,  and 
shall  further  be  liable  to  be  indicted,  and,  on  conviction  before  any 

45.  1835,  c.  17,  s.  3. 

46.  1805,  c.  684. 

47.  1820,  c.  1041,  s.  1  and  2. 

48.  1754,  c.  56.— 1791,  c.  339,  s.  2  and  3.— 1831,  c.  40,  s.  2. 

49.  1802,  c.  60S,  s.  1. 


Chap.  XXXIV.]  crimes  and  punishments.  203 

of  the  courts  of  this  State  having  cognizance  thereof,  shall  be 
fined  a  sum  not  exceeding  two  hundred  dollars. 

50.  If  any  person  shall  wilfully  and  corruptly  commit  perjury  on  Perjury,  how 
his  or  her  oath  or  affirmation,  in  any  suit,  controversy,  matter  or^™^^  ^  ^' 
cause  depending  in  any  of  the  courts  of  this  State,  or  on  any  oath 

or  affirmation  made  or  in  any  deposition  or  affidavit  taken  pursuant 
to  the  laws  of  this  State,  every  such  person,  so  offending  and  being 
thereof  convicted,  shall  be  fined  not  exceeding  the  sum  of  one 
thousand  dollars,  and  shall  stand  in  the  pillory  for  one  hour,  at  the 
expiration  of  which  time  both  ears  of  the  person  so  offending  shall 
be  cut  off  and  severed  entirely  from  the  head,  and  the  ears  so  cut 
off  shall  be  nailed  to  the  pillory  by  the  officer,  and  there  remain 
until  the  setting  of  the  sun  ;  and  the  person  so  offending  shall  be 
rendered  thereafter  incapable  of  giving  testimony  in  any  of  the  courts 
of  this  State,  or  in  any  case  whatsoever,  until  such  time  as  the 
judgment  so  given  against  the  said  offender  shall  be  reversed. 

51.  If  any  person  shall,  by  any  means,  procure  another  person  to  Subornation  of 
commit  corrupt  and  wilful  perjury,  on  his  or  her  oath  or  affirmation  punishable. 

in  any  suit,  controversy,  matter  or  cause  depending  in  any  of  the 
courts  of  this  State,  or  on  any  oath  or  affirmation  made  or  in  any 
affidavit  or  deposition  taken  pursuant  to  the  laws  of  this  State,  the 
person,  so  offending  and  being  thereof  convicted,  shall  stand  in  the 
pillory  one  hour,  have  his  or  her  right  ear  cut  off,  and  shall  be  fined 
at  the  discretion  of  the  court,  in  a  sum  not  exceeding  one  thousand 
dollars  ;  and  the  person  so  offending  shall  be  thereafter  rendered 
incapable  of  giving  testimony  in  any  of  the  courts  of  this  State,  or 
in  any  case  whatsoever,  until  such  time  as  the  judgment  so  given 
against  the  said  offender  shall  be  reversed. 

52.  Provided,  that  it  shall  not  be  lawful  to  sentence  the  offender  Proviso  as  to 
to  have  his  ears  or  either  of  them  cut  off,  unless  the  perjury  or  gyb.'^uttuig  off  ears. 
ornation  of  perjury,  of  which  he  is  convicted,  shall  have  been  com- 
mitted upon  the  trial  of  some  capital  offence  ;  and  when  otherwise 
committed  than  on   the  trial  of  any  capital  case,  the  offender,  ou 
conviction,  in  Ueu  of  having  his  ears  cut  off,  shall  be  sentenced  to 

receive  one  or  more  public  whippings,  not  less  than  thirtynine  lash«s 
on  his  bare  back. 

53.  Whereas  principal  felons  frequently  escape  and  elude  the  Accessories  to 
process  of  law,  whereby  accessories  cannot  be  prosecuted  and  pun-  felonies,  how 

i  1      ,       P  1         ,  /■•in         1  1      1       /.  1  ^         punishable  in 

ished  :  tor  remedy  whereot,  it  shall  and  may  be  lawful  to  prosecute  certain  cases. 
and  punish  any  accessory  to  felony  as  for  a  misdemeanor,  to  be 
punished  by  a  fine  not  exceeding  one  hundred  dollars,  and  corporal 
punishment  not  exceeding  thirtynine  lashes,  or  standing  in  the  pil- 
lory not  exceeding  two  hours,  although  the  principal  felon  be  not 
before  convicted  of  said  felony,  which  shall  exempt  the  offender 
from  being  punished  as  accessory,  if  the  principal  be  afterwards 
convicted. 

50.  1791,  c.  338,  S.  1. 

51.  1791,  c.  338,  s.  2. 

52.  1831,  c.  12. 

63.  1797,  c.  485,  s.  I. 


204 


CRIMES    AND  PUNISHMENTS.   [ChAP.  XXXIV. 


Receivers  of 
stolen  goods, 
&c.  how  pun- 
ishable. 


Altering  the 
mark  or  mis- 
marking  cattle, 
&c.  how  pun- 
ishable. 


Holding  out 
false  lights  on 
the  sea  coast, 
how  punish- 
able. 


Counterfeiting 
gold  or  silver 
coins,  how  pun- 
ishable. 


Having  in  pos- 
session instru- 
ments for  coun- 
terfeiting, how 
punishable. 


54.  If  any  person  shall  receive  or  buy  any  property,  that  shall  be 
feloniously  stolen  or  taken  from  any  other  person,  knowing  the 
same  to  be  stolen,  or  shall  harbor  or  conceal  any  felon,  knowing  him, 
her  or  them  to  be  so,  such  person  or  persons  shall  be  taken  and 
received  as  accessories  to  said  felony,  and  may  be  prosecuted  as 
for  a  misdemeanor  and  punished  as  set  forth  in  the  preceding  sec- 
tion, although  the  principal  felon  be  not  before  convicted  of  said 
felony,  which  shall  operate  as  a  bar  and  prevent  the  offender  from 
being  punished  as  accessory,  if  such  principal  felon  shall  be  after- 
wai'ds  taken  and  convicted.  Provided  always,  that  nothing  in  these 
two  sections  shall  be  so  construed  as  to  prevent  accessories  to 
felonies  from  being  prosecuted  and  punished  as  heretofore  directed 
by  law. 

55.  If  any  person  shall  knowingly  alter  or  deface  the  mark  or 
brand  of  any  other  person's  neat  cattle,  sheep  or  hog,  or  shall 
knowingly  mismark  or  brand  any  unbranded  or  unmarked  neat  cat- 
tle, sheep  or  hog,  not  properly  his  own,  with  an  intent  to  defraud 
any  other  person,  such  person  or  persons,  on  conviction  in  a  court 
of  record,  shall  be  liable  to  corporal  punishment  in  the  same  man- 
ner as  on  conviction  of  petit  larceny. 

56.  Any  person  who  shall  make  or  display  or  cause  to  be  made 
or  displa3'ed  any  false  hght  or  beacon,  on  or  near  the  sea  coast 
within  the  limits  of  this  State,  for  the  purpose  of  deceiving  and 
misleading  masters  of  vessels,  whereby  they  may  be  in  danger  of 
shipwreck,  shall,  on  conviction  thereof,  be  fined,  or  fined  and  im- 
prisoned at  the  discretion  of  the  court. 

57.  If  any  person  or  persons  shall  make  or  cause  to  be  made 
any  counterfeit  similitude  or  likeness  of  a  Spanish  milled  dollar, 
or  any  foreign  coin  of  gold  or  silver,  which  is  in  common  use  and 
received  in  the  discharge  of  contracts  by  the  citizens  of  this  State, 
or  shall  utter  or  pass  the  same,  knowing  it  to  be  counterfeit,  and 
shall  be  legally  convicted  of  either  of  the  said  offences  in  any  su- 
perior court  of  law  of  this  State,  the  person  or  persons,  so  found 
guilty,  shall  on  the  first  conviction  receive  thirtynine  lashes  on  his 
or  her  bare  back,  and,  on  the  second  conviction  of  the  above  de- 
scribed offences  or  either  of  them,  shall  receive  thirtynine  lashes 
on  his  or  her  bare  back  and  be  imprisoned  for  a  length  of  time  not 
exceeding  twelve  months,  and  be  branded  in  the  right  cheek  with 
the  letter  C. 

58.  If  any  person  or  persons  shall  have  in  his  or  their  posses- 
sion any  instrument  or  instruments  for  the  purpose  of  making  any 
counterfeit  similitude  or  likeness  of  a  Spanish  milled  dollar,  or 
other  foreign  coin  made  of  gold  or  silver,  which  is  in  common  use 
and  received  in  discharge  of  contracts  by  the  citizens  of  this  State, 
and  shall  be  duly  convicted  thereof  in  any  superior  court  of  law  of 
this  State,  the  person  or  persons  so  offending  shall  receive  thirty- 
nine  lashes  on  his  or  her  bare  back  and  be  further  liable  to  be  fined 


54.  1797,  c.  4S5,  S.  2. 

55.  1741,  c,  26,  s.  2.— 1S22,  C.  1155. 

56.  1831,  c.  42. 

57.  1811,0.  814,  S.  3. 

58.  1811,  C.814,  s.  4. 


Chap.  XXXIV,]  crimes  and  punishments.  205 

at  the  discretion  of  the  court  in  the  sum  of  five  hundred  dollars  and 
be  imprisoned  not  more  than  twelve  months. 

59.  If  any  person  shall  falsely  make,  forge  or  counterfeit,  or  Counterfeiting: 
cause  or  procure  to  be  falsely  made,  forged  or  counterfeited,  or  j^^^  p"^jj\^g^j;_^°" 
willingly  aid  or  assist  in  falsely  making,  forging  or  counterfeiting  any  able. 

bill  or  note  in  imitation  of,  or  purporting  to  be  a  bill  or  note,  issu- 
ed by  order  of  the  president  and  directors  of  any  bank  or  corpora- 
tion within  this  State,  or  any  of  the  United  States,  or  any  of  the 
territories  of  the  United  States,  or  any  order  Qr  check  on  any  of 
the  said  banks  or  corporations,  or  any  of  the  cashiers  thereof,  or 
shall  pass,  utter  or  publish,  or  attempt  to  pass,  utter  or  pubhsh  as 
true  any  false,  forged  or  counterfeited  bill  or  note,  purporting  to  be  a 
bill  or  note  issued  by  the  order  of  the  president  and  directors  of  any 
bank  or  corporation  within  this  State,  or  any  of  the  United  States,  or 
any  of  the  territories  of  the  United  States,  or  any  order  or  check 
on  any  of  the  said  banks  or  corporations,  or  any  of  the  cashiers 
thereof,  knowing  the  same  to  be  falsely  forged  or  counterfeited, 
with  intention  to  defraud  any  corporation,  body  politic  or  person, 
every  such  person,  so  offending,  shall  be  deemed  and  adjudged 
guilty  of  felony,  and,  being  thereof  convicted  by  due  course  of 
law  in  any  court  of  competent  jurisdiction,  shall  be  punished  by 
fine  and  imprisonment  not  exceeding  three  years,  putting  in  the 
pillory,  public  whipping  not  exceeding  thirtynine  lashes  on  his  or 
her  bare  back,  all  or  any  of  them  at  the  discretion  of  the  court, 
due  regard  being  had  to  the  nature  and  circumstances  of  the 
offence. 

60.  If  any  person  shall  directly  or  indirectly  pass  or  attempt  to  Passing  or  at- 
pass  to  any  other  person,  for  the  sake  of  gain,  any  false,  forged  or  p^^J'gQ'Ji^ter- 
counterfeited  bill  or  note,  purporting  to  be  a  bill  or  note  issued  by  feit  notes,  &c. 
order  of  the  president  and  directors  of  any  bank  or  corporation  ^ble.^™^^ 
Vv^ithin  this  State,  or  any  of  the  United  States,  or  any   of  the  ter- 
ritories of  the  United  States,  or  any  false,  forged  or  counterfeited 

order  or  check  upon  any  of  the  said  banks  or  corporations,  or  any 
of  the  cashiers  thereof  (knowing  the  same  to  be  falsely  forged  or 
counterfeited,)  every  such  person  so  offending  shall  be  deemed 
and  adjudged  guilty  of  felony,  and,  being  thereof  convicted  by  due 
course  of  law  in  any  court  of  competent  jurisdiction,  shall  be  pun- 
ished by  a  fine  to  the  use  of  the  State,  not  exceeding  five  thou- 
sand dollars,  and  be  imprisoned,  not  exceeding  three  years,  stand- 
ing in  the  pillory,  public  whipping,  not  exceeding  thirtynine  lashes 
on  his  or  her  bare  back,  all  or  any  of  them  at  the  discretion  of 
the  court,  due  regai'd  being  had  to  the  nature  and  circumstances  of 
the  offence. 

61.  If  any  person  or  persons  shall  knowingly  and  designedly,  ^j^*'^'^"J_s  ^y 
by  means  of  any  forged   or  counterfeited  paper  in  writing   or  in  how  punish- 
print,  or  by  any  false  token,  or  other  false  pretence   or   pretences '^'^^^• 
whatsoever,  obtain  from  any  person  or  persons  or  corporation  with- 
in this  State  any  money,  goods,  property  or  other  thing  of  value 

59.  1S19,  c.   994,  s.    1. 

60.  1819,  c.  994,  s.  2. 

61.  1811,  c.  814,  s.  2. 


!i:. 


.  I 


206  CRIMES  AND  PUNISHMENTS.   [ChAP.  XXXIV. 

or  any  bank  note,  check  or  order  for  the  payment  of  money,  issu- 
ed by  or  drawn  on  any  bank  or  other  society  or  corporation  with- 
in this  State,  or  any  of  the  United  States,  or  any  treasury  warrant, 
debenture,  certificate  of  stock  or  other  pubUc  security,  or  any 
order,  bill  of  exchange,  bond,  promissory  note  or  other  obhga- 
tion,  either  for  the  payment  of  money  or  for  the  delivery  of  speci- 
fic articles,  with  intent  to  cheat  or  defraud  any  person  or  persons, 
or  corporation  of  the  same,  such  person  shall  be  held  and  deemed 
guilty  of  fraud  and  deceit,  and,  being  thereof  legally  convicted  in 
any  court  of  competent  jurisdiction,  such  offender  or  offenders 
shall  be  punished  by  fine  and  imprisonment,  not  exceeding  twelve 
months,  putting  in  the  pillory,  pubhc  whipping,  not  exceeding  thir- 
tynine  lashes  on  his  or  her  bare  back,  all  or  any  of  them  at  the 
discretion  of  the  court,  due  regard  being  had  to  the  nature  and  cir- 
cumstances of  the  offence. 
Punishment  for  62.  If  any  person  shall  open,  set  on  foot,  carry  on,  promote, 
carrying  on  lot-  j^^j^g  qj.  (Jraw,  publicly  or  privately,  a  lottery,  by  whatever  name, 
style  or  title  the  same  may  be  denominated  or  known,  or  if  any 
person,  by  such  ways  and  means,  expose  or  set  to  sale  any  house  ' 
or  houses,  lands  or  real  estate,  or  any  goods  or  chattels,  cash,  or 
written  evidence  of  debt,  or  certificates  of  claims,  or  any  thing  or 
things  of  value  whatever,  every  person,  so  offending,  shall,  on 
conviction  thereof,  be  fined  in  any  sum  not  exceeding  two  thou- 
sand dollars,  or  be  imprisoned  not  exceeding  six  months,  or  both,  at 
the  discretion  of  the  court. 
Punishment  for  63.  If  any  person  or  persons  shall  vend,  sell,  barter  or  dispose 
selling  tickets,  ^f  ^^^y  lottery  ticket  or  tickets,  order  or  orders  for  any  number  or 
teries.  shares  in  any  lottery,  or  shall  in  any  wise  be  concerned  in  such 

lottery,  by  acting  as  agent  in  this  State  for  or  on  behalf  of  any  such 
lottery,  to  be  drawn  or  paid  either  out  of  or  within  this  State, 
every  person  shall,  upon  conviction  thereof,  be  fined  in  any  sum, 
not  exceeding  two  thousand  dollars,  or  be  imprisoned,  not  exceed- 
ing six  months,  or  both  at  the  discretion  of  the  court.  Provided^ 
that  nothing  in  this  act  contained  shall  be  so  construed  as  to  pre- 
vent the  drawing  of  any  lottery  authorized  by  the  laws  of  this  State 
or  the  sale  of  any  tickets  in  such  lottery  so  authorized  to  be  drawn. 
Gamingtables  64.  All  pubfic  gaming  tables,  such  as  E.  0.,  A.  B.,  and  A.  B. 
prohibited.  q^  ^^^^  banks,  pass  die  tables,  and  all  others  of  whatever  nature 
or  by  whatever  name  or  denomination  they  shall  be  called,  are 
hereby  totally  forbidden  to  be  used  in  this  State  by  any  person  or 
persons  whatsoever  ;  and  all  justices  of  the  peace,  sheriffs,  con' 
stables  and  the  commissioners  of  pohce  in  the  several  towns  of 
this  State,  ai'e  hereby  authorized  and  directed,  in  case  of  informa- 
tion made  to  them  or  any  of  them  on  oath  that  such  gaming  table 
is  in  the  possession  and  use  of  some  person  within  the  limits  ofj 
their  jurisdiction,  to  destroy  and  annihilate  the  same  by  every ; 
means  in  their  power  ;  and  each  and  every  person,  who  shall 
offer  to  keep  up  or  use  the  same,  shall  be  subject  to  the  penalty 

62  1831,  c.  19,  s.  1. 

63.  1834,  C.  19,  8.  2. 

64.  1791,  C.  336.— 1798,  c.  502,  S.  2. 


II 


i  Chap.  XXXIV.]  crimes  and  punishments.  207 

I  of  two  thousand  dollars  to  be  recovered  in  an  action  of  debt 
by  any  person  suing  for  the  same,  onehalf  to  the  use  of  the  party 
suing,  the  other  half  to  the  use  of  the  State  :  Provided,  that  nothing 
contained  in  this  act  in  relation  to  gaming  tables,  shall  be  con- 
strued to   extend  to  biUiard  and  backgammon  tables. 

65.  All  moneys  exhibited  for  the  purpose  of  alluring  persons  to  5l°°«y  staked 
1  bet  against  at  any  game,  and  all   moneys   actually  staked  or  betted  be  seizedr 

whatsoever,  and  all  species  of  other  property,  shall  be  Hable  to  be 
seized  by  any  justice  or  justices  of  the  peace,  or  by  any  other 
person  or  persons  under  a  warrant  from  a  justice  of  the  peace, 
wheresoever  the  same  may  be  found  ;  and  all  such  moneys  so  seiz- 
ed, shall  be  accounted  for  and  paid,  by  the  person  or  persons  mak- 
ing the  seizure,  to  the  wardens  of  the  poor  of  the  county,  wherein 
the  seizure  shall  be  made,  and  applied  by  the  said  wardens  in  aid 
of  the  poor  tax,  deducting  thereout  fifty  per  centum  upon  all  mon- 
eys so  seized,  to  be  paid  to  the  person  or  persons  making  the  said 
seizure. 

66.  Any  person,  who  shall  oppose  the  destruction  of  any  of  the  Penalty  for  op- 
said  tables  or  the  seizure  of  any  such  moneys,  as  above  described,  P°^™? '^^/fr 

,  ^  .  J^    '        .  '  struction  of  the 

by  any  person  or  persons  so  authorized  to  make  it,  shall  be  liable  tables,  or  the 
to  a  penalty  of  one  thousand  dollars,  to  be  recovered  in  any  court  ^^^""^  °^  ^''® 
of  record  for  the  use  of  the  State,  and  shall  be  further  liable  to 
the  action  of  any  party  grieved  by  such  opposition  ;  and  any  per- 
son or  persons,  wJho  shall  take  or  carry  away  any  part  of  the  said 
money  after  the  said  seizure  shall  be  declared,  shall  be  guilty  of  a 
misdemeanor,  and  be  liable  to  be  indicted  or  prosecuted  therefor, 
and  on  conviction  fined  at  the  discretion  of  the  court  trying  the 
same. 

67.  Any  person  whatsoever,  who  shall   suffer  any  of  the  games  Penalty  for suf- 
played  at  the  tables  commonly   called  A.  B.  C,  E.  0.,  or  faro  in™|bfes"in 
bank,  or  any  other  gaming  table  or  bank  of  the  same  or  like  kind  one's  house, 
under  any  denomination  whatever,  to  be  played  in  his  or  her  house 

or  in  a  house  of  which  he  or  she  hath  at  the  time  the  use  or  pos- 
session, shall  for  every  such  offence  forfeit  and  pay  the  sum  of 
two  hundred  dollars,  to  be  recovered  in  any  court  of  record  ;  and  Sheriff  to  sue 
it  shall  be  the  special  duty  of  the  sheriff  of  the  county,  in  which  ^°'  ^^^  P'^^^^^^- 
such  offence  may  be  committed,  to  sue  for  and  recover  the  said 
penalty  in  the  name  of  the  governor  for  the  time  being,  for  which 
services  the  sheriff,  so  suing  and  recovering,  shall  be  allowed  twen- 
ty per  centum,  the  remainder  of  the  penalty  to  be  accounted  for 
by  him  and  paid  into  the  public  treasury  in  the  same  manner  as  he 
accounts  for  and  settles  the  public  taxes  ;  and  every  sheriff,  who 
shall  fail  or  neglect,  after  information  to  him  made,  or  after  the 
facts  shall  come  to  his  knowledge,  to  perform  the  duties  here  re- 
quired, shall  forfeit  and  pay  fifty  dollars,  to  be  recovered  before 
any  competent  jurisdiction  to  the  person  suing  for  the  same,  and 
pay  the  costs  of  prosecution. 

65.  1798,  C.  502,  s.  3. 

66.  1798,  C.  502,  s.  4. 

67.  1798,  c.  502,  s.  3.— 1800,  c.  552. 


'1 


208  CRIMES  AND    PUNISHMENTS.   [ChAP.  XXXIV 

To  keep  up  68.   In  addition  to  the  penalties  herein  prescribed,  each  and  every 

or  to  pfa^y  at^^'  P^^'son  who  shall  construct,  erect,  keep  up  or  use  any  public  gam- 
them,  indict-  ing  table,  or  place  at  which  games  of  chance  shall  be  played,  by 
^  ^'  whatever  named  called,  shall  be  subject  to  indictment  in  any  court 

of  record  having  jurisdiction  of  the  offence,  and,  upon  conviction, 
shall  be  fined  at  the  discretion  of  the  court  not  less  than  two  hun- 
dred dollars  and  imprisoned  not  less  than  one  calendar  month  ; 
and  each  and  every  person,  who  shall  play,  at  any  of  the  gaming 
tables  forbidden  by  this  act,  any  game  of  chance  and  bet  any  money 
or  property,  whether  the  same  be  in  stake  or  not,  or  who  shall  bet 
at  any  such  game,  shall  be  deemed  guilty  of  a  misdemeanor,  and, 
upon  indictment  and  conviction  in  any  court  of  record  having  juris- 
diction of  the  offence,  shall  be  fined  at  the  discretion  of  the  court 
not  less  than  ten  dollars. 
Persons  play-        (59.  Every  person  who  shall  play  at  any  same  of  cards  in  any  public 

in*^  c3.rQS  m  sl  vj  ±      j       ^        j    o         ^  , 

public  house,    house  or  tavern,  or  house  where  spirituous  liquors  are  retailed,  or 
indictable.        Jn  any  out  house  or  store  attached  thereto,  or  any  part  of  the  pre- 
mises occupied  with  such  house,  and  bet  any  money  or  property, 
whether  the  same  be  in  stake  or  not,  and  every  person  who  shall 
'  bet  on  any  such  game  so  played,  shall  be  deemed  guilty  of  a  mis- 

demeanor, and,  on  conviction  thereof,  shall  be  fined  a  sum  not  less 
than  ten  dollars. 
Tavern  keepers      ijq    jf  any  tavern  keeper,  ordinary  keeper,  or  keeper  of  a  house 

and  ret£LilGrs  oi  •'  *  ."^^  -*■ 

spirituous  li-  of  entertainment,  or  retailer  of  spirituous  hquors,  though  he  or  she 
quors,nidictable  ^^^^  j^qj-  keep  entertainment  for  travellers,  shall  suffer  any  game  of 
gaming  in  their  cards,  at  which  money  or  other  property  is  bet,  whether  the  same 
houses.  ]jg  j^  stake  or  not,  to  be  played  in  his  or  her  dwelling  house,  out 

house  or   store,  or  any  part  of  the  premises  wherein  he  or  she 
lives,  or  shall  furnish  persons  so  playing  with  drink,  or  any  thing 
for  their  comfort  or  subsistence  during  their  time  of  playing,  he  or 
she  shall  be   deemed  guilty  of  a  misdemeanor,   and  on  conviction 
thereof,  shall  be  fined  and  imprisoned  at  the  discretion  of  the  court: 
Provided,  that  the  said  fine  shall  in  no  case  exceed  ten  dollars,  nor 
the  imprisonment  thirty  days. 
Personsjte^^-        j^     ^^^y  person  or  persons,  who  shall  steal  or  sell  any  free  negro 
free  negroes  in  or  free    negroes  or  persons  of  mixed  blood,  knowing  the  same  to 
Bunisliable  ^°^  ^^  ^^^^  °^  Stolen,  or  shall  by  violence,  seduction  or  any  other  means, 
take  or   convey  away  any  free  negro   or  free  negroes  or  persons 
of  mixed  blood  from  one  part  of  this  State  to  another,  with  an  in- 
tention to  sell  or  dispose  of  such  free  negro  or  free  negroes  or  per- 
sons of  mixed  blood,  or  appropriate  the  same  to  his,  her  or  their  own 
use,  and  be  thereof  legally  convicted,  shall,  for  every  such  offence, 
be  fined  not  less  than  one  hundred  dollars  nor  more  than  one  thou- 
sand dollars,  and  imprisoned  not  less  than  three  months  and  not 
more  than  eighteen  months. 
The  clerk  who      >j2.  If  any  clerk  of  the  court  of  pleas  and  quarter  sessions  shall 

issues  3.  license  *^  ■"■ 

for  the  mar-      knowingly  issue  any  license  for  marriage  between  any  free  negro  or 

68.  1835.  c.  3,  s.  2  and  3. 

69.  1799,  c.  526.— 1801,  c.  581.— 1831,  c.  26. 
70  1799.  e.  526.-1801,  c.  531.— 1831,  c.  26. 
51.  1800,  c.  562. 

72.  1830,  c.  4,  s.  2. 


»;^ 


^ 


Chap.  XXXIV.]  crimes  and'ttjnishi\Tents.  209 

any  free  person  of  color  and  a  white  person,  he  shall  be  guilty  of  riage  of  a  free 
a  misdemeanor,  and,  upon  conviction  before  any  court  having  juris-  l^^^he  persoli 
diction,  shall  be  fined  and  imprisoned  at  the  discretion  of  the  court  ;  and  the  justice, 
and  any  clergyman,  minister  of  the  gospel  or  justice  of  the  peace,  j.ie'i  ^ch  per-' 
who  shall  knowingly  marry  any  free  negro  or  free  person  of  coloi-  sons,  shall  be 
to  a  white  person,  shall  be  guilty  of  a  misdemeanor,  and,  upon  con- ^ictment"  ^°' 
viction  in  any  court  having  jurisdiction,  shall  be  fined  and  impris- 
oned at  the  discretion  of  the  court. 

73.  Any  person  v/ho  shall  entice  or  persuade  any  slave  to  absent  Persons  har- 
himor  herself  from  his  or  her  owner's  service,  or  who  shall  harbor  gf™!  {^"^^^^ 
or  maintain,  under  any  pretence  whatever,  any  runaway  slave,  shall,  punishable. 
for  every  such  offence,  forfeit  and  pay  to  the  owner  of  such  slave 

the  sum  of  one  hundred  doUai's,  to  be  recovered  by  action  of  debt, 
before  any  jurisdiction  having  cognizance  thereof,  and  be  further 
liable  to  the  said  owner  in  an  action  for  damages  ;  and  such  person 
shall  also  be  subject  to  a  penalty  of  one  hundred  dollars,  to  be  re- 
covered before  any  justice  of  the  peace,  by  any  person  suing  for  the 
same,  the  one  half  to  the  use  of  the  informer,  the  other  half  to  the 
use  of  the  wardens  of  the  poor  of  the  county  where  suit  is  brought. 
And  the  person  committing  such  offence  shall,  moreover,  be  sub- 
ject to  indictment  therefor,  and,  upon  conviction,  shall  be  fined  at 
the  discretion  of  the  court  not  exceeding  one  hundred  dollars,  and 
imprisoned  not  exceeding  six  months. 

74.  Any  free  person  who  shall   hereafter  teach,   or  attempt  to  Teaching 
teach,  any  slave  within  this  State  to  read  or  write,  the  use  of  figures  or  write  the 

(.excepted,  or  shall  give  or  sell  to  such  slave  or  slaves  any  books  or  ^^^^  of  figiires 
/pamphlets,  shall  be  hable  to  indictment  in  any  court  of  record  in  dfctable. '  ^'^ 
'this  State  having  jurisdiction  thereof,  and,  upon  conviction,  shall 
at  the  discretion  of  the  court,  if  a  white  man  or  woman,  be  fined 
not  less  than  one  hundred  dollars  nor  more  than  two  hundred  dol- 
lars, or  imprisoned,  and  if  a  free  person  of  color,  shall  be  fined^ 
imprisoned  or  whipped,  at  the  discretion  of  the  court,  not  exceed- 
ing thirty  nine  lashes,  nor  less  than  twenty  lashes. 

75.  If  any  person  or  persons  shall  buy  of,  traffic  with,  or  re- f  ^'i^'^J  ^*^^ 
ceive  from,  any  slave  or  slaves  any  cotton,  tobacco,  wheat,  rice,  siaves^for  cer- 
oats,  corn,  rye,  pork,  bacon,  beef,  leather,  raw  hides,  iron  castings,  tam  articles, 
farming  utensils,  nails,  meal,  flour,  spirituous  Hquors  or  wine,  peas, 

salt  fish,  flax,  flaxseed,  hogs,  cattle,  sheep,  wool,  lumber,  staves, 
tar,  pitch,  tnrpentine,  fodder,  shingles,  hoops,  white  oak  heading, 
potatoes,  mutton,  cotton  or  woollen  cloth,  yarn,  wearing  appai'el, 
or  gold  or  silver  bullion  ;  or  if  any  person  or  persons  shall  sell, 
barter  with  or  dehver  to  any  slave  or  slaves,  any  goods,  wares  and 
merchandise,  or  other  article  of  personal  projDerty,  every  person,  so 
offending,  shall,  for  each  offence,  forfeit  and  pay  the  sum  of  one 
hundred  dollars,  to  be  recovered  by  warrant  before  any  justice  of 
the  peace,  and  applied,  onehalf  to  the  use  of  the  party  suing  for 
the  same,  the  other  half  to  the  wardens  of  the  poor  of  the  county  : 
Provided,    however,  that  it  shall  and  may  be  lawful  for  any  person 

73.  1741,  c.  35,  s.  23  —1.791,  c.  33.3,  s.  4.— 1S21,  c.  1120.— 1830,  c.  8. 

74.  1830,  c.  6,  s,  1. 

75.  1826,  c.  13,  s.  1.-1823,  c.  32,  s.  1.-1830,  c.  15.— 1833,  c.  19. 

VOL.  I.  27 


210 


CRIMES    AND   PUNISHMENTS.  [ChAP.  XXXIV. 


Proviso  that 
such  trading 
may  be  in  the 
day  time,  and- 
with  the  writ- 
ten permit  of 
thp  master,  &c. 
of  such  slaves. 


Proviso  not  to 

extend  to  spir- 
ituous liquors, 
fire  arms,  pow- 
der, shot  or 
lead. 


Penalty  on 
masters  of  ves- 
sels for  enter- 
taining slaves 
and  free  per- 
sons of  color 
on  board  their 
vessels  at  cer- 
tain times  with- 
out a  written 
permit. 


Trading  with 
slaves  to  be 
indictable. 


What  circum- 
stances shall  be 
taken  as  pre- 
sumptive ev- 


er persons  in  the  day  time  only,  Sundays  excepted,  viz  :  between 
the  rising  of  the  sun  and  the  setting  thereof,  to  buy  of,  traffic  with, 
or  receive  from  any  slave  or  slaves,  any  such  article  or  articles,  as 
aforesaid,  for  which  he,  she  or  they  may  have  a  permission  in 
writing  from  his,  her  or  their  owner  or  manager,  to  dispose  of  the 
same :  and  further,  it  shall  and  may  be  lawful  for  any  person  or 
persons  in  the  day  time  as  aforesaid,  to  sell  and  deliver  to  any  slave 
or  slaves,  any  goods,  wares  or  merchandise,  or  other  thing,  (al- 
ways excepting  spirituous  liquors,  fire  arras,  powder  or  shot,  or  lead, 
unless  these  articles  be  for  the  owner  or  employers  of  such  slave  or 
slaves,  or  by  the  order  of  the  owner  or  person  having  the  manage- 
ment of  the  same,)  in  exchange  for,  or  payment  of  the  money,  or 
article  or  articles  which  the  said  slave  or  slaves  may  have  been,  by 
the  written  permission  aforesaid,  authorized  to  sell. 

76.  It  shall  not  be  permitted  for  the  master  or  commander  of 
any  vessel  to  entertain  any  slave,  negro,  or  mulatto  on  board  such 
vessel,  at  any  time  between  sunset  and  sunrise,  nor  during  the 
Sabbath  day,  unless  such  slave,  negro  or  mulatto  as  shall  belong 
to  the  vessel,  or  shall  have  a  pass  from  his,  her  or  their  master  or 
mistress,  or  from  some  justice  of  the  peace,  expressing  the  time 
when  and  the  business  for  which  they  go  on  board  ;  and  if  any 
slave,  negro  or  mulatto,  who  has  not  such  pass,  or  is  not  statedly 
employed  on  board  the  vessel  as  one  of  the  hands,  shall  be  found 
on  board  any  vessel  in  any  bay,  harbor,  creek  or  river  within  this 
State  on  the  Sabbath  day  or  in  the  night,  between  sunset  and  sun- 
rise, he  shall  be  presumed  to  have  been  disposing  of  stolen  goods  ; 
arid  the  master  or  commander  of  such  vessel,  on  complaint  and 
conviction  before  any  two  justices  of  the  peace,  shall  be  subjected 
to  a  fine  for  entertainment  of  such  slave,  negro  or  mulatto,  of  ten 
dollars  for  the  first  offence,  and  twenty  dollars  for  every  succeed- 
ing ofience,  to  be  applied  to  the  use  of  the  poor  of  the  county  in 
which  conviction  shall  be  had  ;  but  any  person,  dissatisfied  with  the 
judgment  of  the  said  two  justices,  shall  have  the  right  of  appealing 
to  the  court  of  the  county,  the  determination  whereof  shall  be  final, 
the  person  appealing  to  be  subject  to  the  same  regulations  as  in 
cases  of  other  persons  appealing  from  the  judgment  of  a  justice.     . 

77.  The  offences,  mentioned  in  the  seventyfifth  section,  shall 
moreover  be  indictable  in  the  county  or  superior  courts  of  law,  and 
the  defendant,  on  conviction,  shall  be  fined  or  imprisoned  at  the 
discretion  of  the  court  ;  the  fine  however  not  to  exceed  fifty  dol- 
lars, or  the  imprisonment  three  months  ;  and  if  it  shall  appear  on 
the  trial  that  the  defendant  is  a  licensed  retailer  of  spirituous  liquors 
by  the  small  measure,  he  or  she  shall  also  forfeit  his  or  her  retail- 
ing license,  and  shall  be  incapable  of  taking  a  new  hcense  for  the 
space  of  two  years  from  and  after  the  date  of  his  or  her  con- 
viction. 

78.  If  any  slave  or  slaves  shall  be  found  in  any  storehouse, 
warehouse,  tippling  shop,  or  other  place  fitted  up  for  trading,  un- 
less sent  by  his,  her  or  their  owner,  overseer  or  employer,  after 


76.  1787,  c.  267. 

77.  1826,  c.  13,  s.  2. 

78.  182G,'  c.  13,  s.  6. 


N 


Chap.  XXXIV.]  crimes  and  punishments.  211 

the  hour  of  nine  o'clock  at  night,  or  before  daybreak  in  the  morn-  idence  of  such 
ing,  or  on  the  Sabbath  day  ;  or  if  any  slave  or  slaves  shall  be  found  the*^oTOer^oF^ 
at  any  time   in  any  of  the  aforementioned  places,  unless  sent  as  stores  and 
aforesaid,  where  he,  she  or  they  shall  have  been  permitted  to  re-^  °P^' 
main  for  the  space  of  fifteen  minutes,  with  the  door  of  the  afore- 
mentioned place  closed  ;  or  if  any  slave  or  slaves  shall  -be  seen  to 
carry  into  the  aforementioned  places   any  article  or  articles  sup- 
posed for  sale,  and  not  bring  the  same  out ;  or  if  he,  she  or  they 
shall  bring  out  of  the  said  places  any  article  or  articles  which  may 
have  been  purchased  therein,  this  shall  be  taken  and  received  as 
presumptive  evidence   against  the  person   or  persons  owning  or 
keeping  the  storehouse,  warehouse,   tippling  shop,  or  other  place 
fitted  up  for  trading,  of  an  unlawful  trading  with  such  slave  or 
slaves  ;  to  be  rebutted,  however,  hke  other  presumptions,  by  other 
circumstances  in  favor  of  the  accused. 

79.  Tf  any  person  shall  fraudulently  give,  or  cause  to  be  given.  Penalty  for 
to  any  slave,  the  property  of  another,    a  permission  in  writing  to  Jiving  ^"a^ 
sell,  trade  or  traffic  in  any  article  of  personal  property,  without  the  slave  a  written 
consent  or  authority  of  the  master,  owner,  or  the  person  having  the  ^^li^^  ^° 
management  of  such  slave,  he,  she  or  they,  so  offending,  shall,  upon 
conviction  before  any  justice  of  the  peace  in  the  county  where  such 

offence  is  committed,  forfeit  and  pay  the  sum  of  one  hundred  dol- 
lars, one  half  to  the  use  of  the  person  suing  for  the  same,  and  the 
other  half  to  the  use  of  the  wardens  of  the  poor  of  said  county. 

80.  Either  of  the  parties,  or  master  of  the  slave,  being  dissat-  Appeals  allow- 
isfied  with  the  judgment  of  the  justice  or  the  verdict  of  the  jury,  prosecution°  or 
may  pray  an  appeal  therefrom,  as  in  other  cases  :   Provided,  that  indictment  for 
no  suit  or  indictment   shall  be  prosecuted   for  any  violation  of  tjie  slaves^  ^^ 
seventyfifth  and  seventyninth  sections  of  this  act,  unless  such  suit 

or  indictment  be  commenced  within  twelve  months  after  such 
violation. 

81 .  If  any  person  shall  retail  spirituous  liquors  by  the  small  mea-  Retaiiine  spir- 
sure  in  any  other  manner  than  is  permitted  by  law,  such  person  or  ituous  liquors 
persons,  so  offending,  shall  be  subject  to  indictment,  either  in  the  jjg^g^j.g°j^j^}j. 
superior  or  county  court,  for  the  same,  and,  upon  conviction,  shall  out  a  license, 
be  fined  at  the  discretion  of  said  court  a  sura  not  less  than  five  dol-  "^  ^^^^  ^' 
lars  for  each  and  every  offence. 

82.  It  shall  be  the  duty  of  the  sheriffs  of  the  several  counties  of  ^^f^^^^  ^°  f"'- 

1  .       c-i  11  CI-  r        iiish  county  at- 

thjs    btate,    at  each  and  every  term  oi  then*  county  courts,  to  lur-  tomey  with  a 
nish  the  prosecutina;  attorneys  of  their  respective  counties  with  a  [i*^ .°f  *4°*^ 

X  o  J  X  tlSVinS"    IIC6IIS6S 

list  of  all  such  persons  in  their  county  as  have,  within  the  term  of  to  retail,  to  be 
twelve  months  last  past,  obtained  a  license  to  retail  spirituous  liquors  ^'^^^^j^^yj^  *^ 
by  the  small  measure,  which  list  shall  be  handed  over  to  the  fore- 
man of  the  grand  jury,  and  the  grand  jury   instructed  as  to  their 
duty  in  relation  thereto,  by. the  prosecuting  attorney. 

83.  If  any  person  shall  hunt  in  the  woods  with  a  gun  in  the  night  Hunting  in  the 

•'  '  CI  o      woods  with  a 

^n  by  firelight, 
79.  1826,  c.  13,  s.  3.  indictable. 

SO.  1826,  c.  13,  s.  7. 
81.   1825,  c.  1272,  s.  5. 
S2.  1825,  C.  1272,  s.  4. 
83.  17B4,  c.  212,  s.  1.— 1801,  c.  595. 


212  CRIMES  AND  PUNISHMENTS.    [ChAP.  XXXIV. 

time,  by  fire  light,  the  person,  so  ofFending,  shall,  upon  convic- 
tion by  indictment  in  any  court  of  record,  be  fined  by  such  court 
forty  dollars,  to  be  apphed  to  the  use  of  the  county  where  the 
offence  was  committed  ;  and  if  he  shall  fail  or  refuse  to  pay  such 
fine,  he  shall  be  imprisoned  by  the  court  not  exceeding  two  months, 
and  shall  also  stand  committed  until  the  costs  are  paid. 
Persons  send-        g4_  jf  ^jjy  slave  or  slaves  shall  hunt  in  manner  hereinbefore  men- 

ing  their  slaves   .  i      ,       "^  p  r      i  i  i  •  ^ 

to  hunt  in  the   tioned,  the  master  oi  such  slave  or  slaves,  or  the  person  m  whose 
woods,  &c.       service   he  or  they  may  be,  shall,  upon    due    conviction    of  such 

I10"W  "PUIUSJl-  *  .  . 

able.  slave  or   slaves,  before    any  justice  of  the    peace  of  the    county 

wherein  such    offence  may  be  committed,  forfeit  the    sum  of  ten 
dollars,  to  be  levied  by  a  warrant,  immediately  to  be  issued  by  such 
justice,  for  that  purpose  ;  and  if  any  person  shall  be  duly  convict- 
ed, as  aforesaid,  of  sending  his  slave  to  hunt   with   a  gun   in   the 
night,  he  shall  be  subject  to  the  same  pains  as  are  provided  by  the 
preceding  section,  to  be  inflicted  on  fire  hunters. 
An  accomplice       §5,  When  more  persons  than  one  are  engaged  in  the  commission 
uponVving'^^'  of  the  offence  of  fire  hunting,  it  shall  and  may  be  lawful  for  one  of 
evidence  them  to  give  evidence  against  any  one  or  all  others  concerned  ;  and 

hfwltobedis-  his  testimony  shall   be  held    and    deemed    to  be  as   effectual,  and 
charged.  ghall  have  equal  weight,  as  if  given  by  any    person  perfectly  disin- 

terested and  innocent  of  the    offence,  giving   like  information   of 
the  same  facts,  subject  in  other  respects  to  the    general   rules    of 
law  respecting  witnesses  ;  and  such  witness,  upon  giving  such  infor- 
mation, and  after  due  conviction  of  one  or  more  such  offenders, 
shall  be  acquitted  and  held  dischai'ged  from  all  penalties  and  pains, 
to  which  he  was  subject  from  his  participation  in  such  offence. 
T,     ,,  86.   It  shall  not  be  lawful,  under  any  pretence  whatever,  for  any 

Penalty  on  any  '  .  f      i  i  •  i  •      i  ■ 

person  or  cor-   person  or  persons,  or  any  corporation,  school  or  academy  within  this 
sufn^^due^bills'  State,  which  now  is,  or  hereafter  may  be  established,  to  issue  any 
bill,  order,  ticket,  promissory  note,  or  any  other  species  of  secu- 
rity, whatever  may  be  its  form  or  name,  commonly  called  due  bills, 
with  an  intention  to  evade  this  section,  under  the  penalty  of  twenty 
dollars,  for  each  and  every  bill,  order,  ticket,  promissory  note,  or 
other  species  of  security,  whatever    be  its  name   or    form,  com- 
monly called  due  bills  so  issued. 
Penalty  for '         87.   It  shall  not  be  lawful  for  any  person  or    persons  to  pass  or 
cefvk<?due^^'   receive  any  bill,  order,  ticket,  promissory   note,  or  other  species 
bills.  of  security,  whatever    be  its  name  or  form,  commonly  called  due 

bills,  issued  contrary  to  the  preceding  section  of  this  act,  or  which 
has  been  already  issued,  or  is  now-  in  circulation,  or  for  any  person 
or  persons  to  pass  or  receive  any  bill,  order,  ticket,  promissory  note 
or  other  species  of  security,  whatever  may  be  its  form  or  name, 
commonly  called  due  bills,  issued  by  any  person  or  persons,  or 
bodies  corporate  of  another  state,  under  the  penalty  of  twenty 
dollars  for  each  and  every  bill,  order,  ticket,  promissory  note  or 
other  species  of  security,  whatever  may  be  its  form  or  name,  com- 
monly called  due  bills,  so  passed  or  received. 

84.  1784,  c.  212,  S.  3. 

85.  1774,  c.  103. 

86.  1809,  c.  770.— 1811 

87.  1816,  c.  900,  S.  2. 


Chap.  XXXIV.]  crimes  and  punishments.  213 

88.  It  shall  not  be  lawful  for  any  person  or  persons   to  pass  or  Penaltyfor 
receive  any  check  or  checks,  drawn  for  less  than   one    dollar,  on  cefvTn'?a  check 
any  of  the  banks  of  this  State,  or  the  various  branches  or  agencies  on  any  bank 
thereof,  for  the  benefit  of  any  academy,  school  or  corporation,  or  than  one^olfar. 
company  or  private  citizen,  or  any  check  or  checks  drawn  on  any 

person  or  persons  whatsoever,  under  the  penalty  of  twenty  dollars 
for  each  and  every  check  so  passed  or  received. 

89.  If  any  person  or  persons  shall  offend  against  the  provisions  The  issuing, 
of  the  three  preceding  sections,  he,  she  or  they  may  be  prosecuted  cefvTn'^due'^'^' 
at  the  instance  of  the  State,  by  way  of  presentment  or  indictment,  bills,  or  the 
and,  on  conviction,  shall   pay  the  penalty  heretofore  prescribed,  cdvln^^checks 

together  VS^ith  all  costs  of  suit.  on  any  bankfor 

>.„      Tc  IT,  a  sum  less  than 

90.  11  any  person  or  persons,  bodies  corporate,  company  or  asso-  one  dollar,  to  be 
ciation,  shall,  without  the  authority  of  the  legislature  first  had,  issue  indictable, 
any  promissory  notes  commonly  called  bank  notes  of  any   value,  Any  person  or 
With  intention  that  the  same  should  circulate  and  be  received    as  a  suing  notes  to 
substitute  for  money,  he,  she  or   they,  or  the  persons   composing  P^^ffo^'P^^n^y' 

.  ^  *■  ,     ,  jTo  ^vitbout  bein^ 

the  aforesaid  bodies    corporate,  company,  or  association,  shall  be  authorized  by 
prosecuted  by  way  of  indictment,  at  the  instance  of  the  State,  in  jaw  so  to  do, 
any  of  the  courts  of  record  thereof,  and  on   conviction  shall   be  able, 
fined  in  the  sura  of  two  hundred  dollars,  and  be  imprisoned  at  the 
discretion  of  the  court,  not  exceeding  six  months. 

91.  All  fines  and  penalties,  which  may  arise    from    convictions  j^/^^gg^^^^^i^.' 
for  the  offences  prohibited  by  the  five  preceding  sections,  shall  be,  propriated. 
and  they  are  hereby  appropriated,  onehalf  to  the  use   of  the  pros- 
ecutor, the  other  to  the  use  of  the  county  where  the  offence  was 
committed.  ^^  -  >  .  ^ 


goods'.  4!  /i=<^-3  .     ^^  -   2^  -  r3 


88.  1816,  c.  900,  s 

89.  1816,  c.  900,  s 
90,1816,0.900,8.7.  ,<ryj~<~       /?^  -/ •» 

91.  1816,  c.  900;  s.  6  ySr<,4,-~^  ■    C.^       -L-L^ 


/f4^-7'       ^^  <^^-7^ 


Note — References  TO  Adjudged  Cases. 

Sect.  9.  State  vs.  Scott,  1  Hawks,  24. 

Sect.  10.  Staters.  Hall,  Tayl.  126.  States.  Davis,  2  Car.  R.  291.  State  vs.  Jer- 
nigen,  N.  C.  Term  R.  44.     State  vs.  Jernigen,  3  Muri^h.  12. 

Sect.  11.  State  vs.  Edmund,  4  Dev.  340. 

Sect.  13.  State  vs.  Crawford,  2  Dev,  425. 

Sect.  19.  State  ijs.  Higgins,  Martin  72. 

Sect.  21.  State  ss.  Dalton,  1  Hawks,  3.     State  vs.  Britt,  3  Dev.  122. 

Sect.  23.  State  vs.  Ronto,  3  Hawks,  618. 

Sect.  26.  State  vs.  Kearney,  1  Hawks,  53.    State  vs.  Yeats,  4  Hawks,  187. 

Sect.  30.  State  vs.  Jeffreys,  3  Murph.  480.     State  vs.  Joyncr,  4  Hawks,  350. 

Sect.  40.  State  vs.  Nicholson,  2  Murph.   135. 

Sect.  42.  State  vs.  Sawyer,  2  Dev.  213. 

Sect.  46.  State  vs.  Cox,  N.  C.  Term  R.  165.  State  vs.  Aldridge,  3  Dev.  321.  State 
vs.  Dickerson,  1  Dev.  and  Bat.  349. 

Sect.  48.  State  rs.  Erwin,  1  Hay.  112.  State  i;s.  Evans,  ib.281.  Staters.  Orman,  1 
Dev.  and  Bat.  119. 

Sect.  54.  State  xs.  Goode,  1  Hawks,  463. 

Sect.  58.  State  vs.  Collins,  3  Hawks,  191. 

Sect.  61.  State  vs.  Simpson,  3  Hawks,  620. 

Sect.  77.  State  rs.  Blythe,  1  Dev.  and  Bat.  199.  Staters.  Shaw,  2  Dev.  19S. — 
State  rs.  Morrison,  3  Dev.  299. 


214 


CRIMINAL   PROCEEDINGS.    [ChAP.  XXXV. 


CHAPTER  35. 


CRIMINAL.    PROCEEDINGS. 


AN  ACT  CONCERNING  PROCEEDINGS  IN  CRIMINAL  CASES. 


Section 

1.  Duty  of  magistrates  in  committing 

criminals. 

2.  Duty  of  sheriffs  and  other  ofScers  in 

arresting  felons. 

3.  No  person  to  be  imprisoned  but  in  a 

common  jail. 

4.  Governor  may  employ  an  agent,  or 

offer  a  reward,  for  the  apprehension 
of  fugitives  from  this  State,  charged 
with  capital  offences. 

5.  Judges,  or  any  two  justices   of  the 

peace,  may  commit  fugitives  from 
other  States,  charged  with  certain 
criminal  offences. 

6.  No  person  to  be  arrested  on  a  pre- 

sentment, before  indictment  found. 

7.  Name  of  the  grand  juror  giving  in- 

formation, or  of  the  witness,  to  be 
endorsed  on  a  presentment. 

8.  Indictments  for  misdemeanors,  with 

certain  exceptions,  must  be  com- 
menced within  three  years — Provi- 
so, where  the  judgment  is  arrested, 
OT  a.  nolle  prosequi  entered. 

9.  When  criminal   process   may  issue 

and  be  returnable— Criminal  pro- 
ceedings to  be  as  heretofore  in  use. 

10.  Sheriff  to  take  bail  where  the  offence 

is  bailable. 

11.  Persons  accused  entitled  to  counsel. 

12.  No  indictment  to  be  quashed,  or  judg- 

ment arrested,  for  merely  formal  ob- 
jections. 

13.  In  an  indictment  on   a  libel,  the  de- 

fendant may  give  the  truth  in  evi- 
dence. 

14.  When  an  assault  is  in  one  county 

and  the  death  in  another,  the  offender 
may  be  tried  where  the  assault  was 
made. 

15.  When   an  assault   is   made  in  this 

State  and  the  death  is  out  of  it,  the 
offender  may  be  tried  in  this  State. 

16.  Plea  to  be   entered  for  a  defendant 

when  he  stands  mute  on  a  criminal 
charge. 


Section 

17.  In  capital  cases  the  judge  may  issue 

a  special  venire  facias. 

18.  Penalty  on  the  sheriff  for  not  execu- 

ting it,  and  the  jurors  for  non-atten- 
dance. 

19.  In  capital  cases  defendants  may  chal- 

lenge thirtyfive  jurors,  in  others 
four,  and  may  have  the  assistance 
of  counsel  in  making  such  chal- 
lenges. 

20.  In  capital  cases  the  State's  counsel 

may  challenge  four  jurors  peremp- 
torily. 

21.  Peremptory  challenges    beyond  the 

number  allowed  by  law,  shall  be 
void. 

22.  On  conviction  of  a  felon,  for  robbing 

or  stealing  goods,  &c.,  the  goods 
shall  be  restored. 

23.  Court  may,  in  certain  cases,  direct 

the  prosecutor  to  pay  costs. 

24.  New  trial  may  be   granted  by  the 

court  when  the  defendant  is  con- 
victed. 

25.  Special  days  to  be  appointed  for  the 

trial  of  State  causes,  of  which  the 
clerk  must  give  notice ;  and  must 
issue  subpoenas,  &c.  accordingly. 

26.  How  the  petit  jurors  shall  be  sworn 

in  cases  not  capital. 

27.  Pay  of  witnesses  in  State  cases,  and 

how  they  shall  be  paid. 
23.  Judges  of  the  superior  courts  may 
mitigate    or  remit    recognizances, 
both  before  and  after  judgment. 

29.  Clerk  to  refund  when  the  remitted 

forfeiture  has  been  paid. 

30.  County  trustee  to  refund  when  such 

remitted  forfeiture  has  been  paid 
over  to  him. 

31.  County  courts  may  remit  fines  ;  and 

also  forfeitures  before  judgment — 
Appeals  allowed  from  judgments  on 
forfeited  recognizances. 

32.  No  execution  to  issue  on  a  forfeited 


Chap.  XXXV.]  criminal  proceedings. 


215 


Section 

recognizance,  &c.  until  after  a  scire 
facias. 

33.  Clerks  to   issue  a  joint   scire  facias 

against  the  principal  and  his  sure- 
ties on  a  recognizance. 

34.  How  such  scire  facias  to  be  exe- 

cuted. 


Section 
35.  Such  scire  facias  to  be  entered  as 
one  suit  against  the  principal  and 
his  sureties — One  set  of  costs  only 
to  be  collected,  except  when  the  de- 
fendants plead  separately. 


1.  Be  i/  enacted  by  the  General  .Assembly  of  the  State  of  JVorth 
Carolina.)  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

That  no  person  within  this  State  shall  be  committed  to  prison  for  Duty  of  magis- 

any  criminal  matter,  until  examination  thereof  be  first  had  before  mittlna^cTi'mi^- 

some  magistrate,  which  magistrate  shall  admit  the  party  to  bail,  if  nals. 

bailable,  and  shall  record  the  examination  of  the  party  and  also  the 

full  matter  given  in  evidence,  both  against  him  and  for  him,  with 

all  concurring  circumstances,  and  shall  take  recognizance  with  good 

and  sufficient  sureties  for  the  informer  to  appear  and  prosecute,  as 

the  laws  of  the  State  direct,  and  Hkewise  for  all  witnesses  for  the 

State  to  appear  and  give  evidence  against  the  criminal,  at  the  next 

court,  where  the  matter  is  cognizable,   ensuing  such  examination, 

which  examination  and  recognizance  so  taken  shall  be  returned  to 

the  office  of  the  court  wherein  the  matter  is  to  be  tried. 

2.  Whenever  a  felony  shall  be  committed,  it  shall  be  the  duty  Duty  of  sher- 
of  the  sheriff,  constables  and  other  peace  officers  forthwith,  upon  ^^^^^Jg  "^^  ^'|y_ 
information  received  by  them,  to  pursue  and  arrest  the  person  resting  felons, 
committing  such  felony,  and  he  or  they  shall  have  power  to  call  to 

his  or  their  aid  and  assistance  so  many  of  the  freemen  of  his  or 
their  county,  as  may  be  necessary  for  that  purpose  ;  and  if  any 
sheriff,  constable  or  other  peace  officer,  shall  refuse  or  wilfully 
neglect  to  pursue  and  use  all  the  means  in  his  power  to  arrest  such 
felon,  or  if  any  person,  summoned  to  aid  and  assist  such  sheriff', 
constable  or  other  peace  officer  in  the  pursuit  and  arrest  of  such 
felon,  shall  refuse  or  wilfully  neglect  to  render  such  aid  and  assist- 
ance, every  sheriff,  constable  or  other  peace  officer  or  other  per- 
son, 30  offending,  shall  be  subject  to  indictment,  and  upon  convic- 
tion shall  be  punished  as  for  a  misdemeanor. 

3.  No  person  shall  be  imprisoned  by  any  judge,  justice  of  the  No  person  to 
peace  or  other  peace  officer,  but  only  in  the  common  jail  of  the  but^m'thTcom- 

COUnty.  monjail. 

4.  It  shall  be  lawful  for  the   governor  for  the  time  being,  on  in-  Governor  may 
formation  made  to  him  of  any  person  or  persons  having  committed  ^^^PW  ^'^ 

*'    ■>■  i  *^  a'^ent  or  oner  £L 

any  offence  of  a  capital  nature  within  this  State,  and  of  having  fled  reward,  for  the 
beyond  or   out   of  the  jurisdiction  thereof  to  any  of  the  United  ^PP.^?^*^"!^"""^ 
States,  either  to  employ  a  special  agent  with  a  sufficient  guard  or  this  State, 
escort  to  pursue  and  apprehend  such  fugitive  or  fugitives  from  pun-  ch'^fge'l  with 
ishment,  or  to  issue  his  proclamation  and   therein  and  thereby    of-  fences. 
fer  a  reward,  not  exceeding  four  hundred  dollars,  according  to  the 
nature  of  the  case,  as  in  his  opinion  may  be  sufficient  for  the  pur- 

1.  1715,  c.  1.— 2  and  3  Phil,  and  Mary,  c.  10. 

2.  3  Edw.  1,  c.  9. 

3.  5  Hen.  4,  c.  10. 

4.  1800,  c.  5C1. 


216  CRIMINAL   PROCEEDINGS.   [ChAP.  XXXV. 

pose,  to  be  paid  to  such  person  or  persons  as  shall  apprehend  such 
fugitive  or  fugitives,  and  deliver  him  or  them  to  such  person  or 
persons  at  such  place  as  in  said  proclamation  shall  be  directed  ;  and 
it  shall  also  be  lawful  for  him  from  time  to  time  to  issue  his  war- 
rants on  the  public  treasurer,  for  sufficient  sums  of  money  to  de- 
fray the  expenses  of  such  special  agent  and  guard  or  escort,  or  to 
pay  the  reward  offered  by  such  proclamation  upon  the  delivery  of 
such  fughive,  in  manner  as  therein  directed,  for  which  sum  or  sums 
of  money  the  treasurer  shall  be  allowed  in  the  settlement  of  his 
accounts. 
Judges,  or  any  5.  Any  judge  of  the  supreme  court  or  of  the  superior  courts 
two  justices  of  Qf  ]g^  oyrid  equity,  or  anv  two  iustices  of  the  peace,  on  satisfactory 

trie  PG31C6  iiia,v         ,  x       j  ^  •/  _*j^  ^x  ■'^      _  ^     j 

commit  fugi-     evidence  adduced  that  any  fugitive  has  committed  within  the  United 
tives  from  other  g^ates  any  petit  larceny  or  other  offence,  the  punishment  whereof 

St3,t6S    Cn3.r2"6Cl  •'     JL  •'  -^  i- 

with  certain      shall  extend  to  affect  life,  limb  or  member,  shall  have  full  power 
crimmal  offen-  ^^^  authority  to  commit  such  fugitive  to  any  jail  within  this  State 
for  the  space  of  six  months,  unless  sooner  demanded  agreeably  to 
the  directions  of  an  act  of  congress  in  such  cases  made  and  pro- 
vided ;  and  if  no  demand  is  made  within  said  term  of  time,  then 
said  fugitive  shall  again  be  liberated. 
No  person  to         6.  No  person  shall  be  arrested  or   charged  before  any  court  on 
a'presentment  ^  presentment  made  by  a  grand  jury,  before  the  attorney  acting  for 
before  indict- '  the  State  shall  prepare  a  bill,  and  the  bill  be  found  by  the   grand 

mentfouna.       j^^y  tO  be  a  true  bill. 

Name  of  the         7.   When  any  presentment   shall  be  made  of  any  offence  by  a 

livino-^Worm-  §^"3"^  j^'^J?  upon  the  knowledge  of  one  or  more  of  their  body,  the 

ation,  or  of  the  name  or   names  of  such  grand  juror  or  jurors,  giving   information, 

endOTsed  on  a*'  '^'^^  be  endorsed  on  the  presentment  ;  and  when  any  presentment 

presentment,     or  information  shall  be  made  by  the  grand  jury  of  any  offence  upon 

the  testimony  of  a  witness,  called  upon  by  the  grand  jury  to   give 

testimony,  the  name  of  such  witness  shall  hkewise  be  endorsed 

thereon. 

Indictments  for      g_   jj-,  g]}  trespasses   and  other  misdemeanors,  except  the   of- 

with  certain  ex- fences    of  perjury,  forgery,  mahcious   mischief  and  deceit,    the 

ceptions,  must  prosecution  shall  commence  within  tv/o  years  after  the  commission 

be  commenced  ^,-1.1  1       •     i  i  c  1  1  -n 

within  two       oi  the  said  trespasses  and  misdemeanors,  and  not  alter  ;  and  no  bill 
years.  Qf  indictment  shall  be   found  or  presentment  made  by  the  grand 

jury  of  any  county  in  this  State,  where  the  offences  aforesaid  shall 
have  been  committed  two  years  next  before  the  finding  of  the  said 
indictment  or  making  the  said  presentment  :  Provided,  that  in  case 
any  person  or  persons,  committing  any  of  the  said  offences,  shall 
abscond  from  the  county  in  which  the  offence  was  committed,  or 
conceal  him  or  herself,  or  the  said  offences  shall  have  been  com- 
mitted in  a  secret  manner,  then  the  said  trespasses  and  misdemean- 
ors shall  and  may  be  prosecuted  within  two  years  after  the  return 
or  apprehension  of  the  offender,  or  discovery  of  the  offence  : 
Se'luT'TnentTs  P^^ovided  alwttys,  that  when  any  prosecution  shall  be  commenced 
arrested,  or  a    within  the  time  prescribed  by  this  section,  and  judgment  shall  be 

nolle  prosequi 

entered  ■  , 

5.  1810,  c.  736,  s.  1  and  2. 

6.  1797,  c.  474,  s.  3. 

7.  1797,  C.  474,  S,  2. 

8.  1826.  c.  11. 


Chap.  XXXV.]  criminal  proceedings.  217 

arrested  for  any  defect  in  the  indictment,  or  a  nolle  prosequi  shall 
be  entered,  the  computation  of  time  in  such  cases  shall  be  made 
from  the  time  such  prosecution  shall  have  terminated  and  not 
otherwise. 

9.  All  process,  warrants  and  precepts,  issued  by  any  judee  or  When  criminal 

~^.  '  J     ^       r  ''    .     i   •>■,     ^  process  may  is- 

justice  01  the  peace,  or  clerk  oi  any  court,  on  any  crimmal  prose^  sue  and  be  re- 
cution  on  behalf  of  the  State,  may  issue  at  any  time,  and  be  made  tumable. 
returnable  to  any  day  of  the  term  of  the  court,  to  which  such  war- 
rant, process   or  precept  is   returnable,  and  the  proceedings   on 
criminal  suits  and  prosecutions  shall  be  agreeable  to  the  practice  ^gedi™  s^o^be 
heretofore  in  use,  except  where  the  same  is  or  may  be  otherwise  as  heretofore  in 
directed.  "®^" 

10.  When  any  sheriff  or  his  legal  deputy  shall  arrest  the  body  Sheriff  to  take 
of  any  person,  in  consequence  of  the  writ  of  capias,  issued  to  him  offence  is  bail- 
by  the  clerk  of  any  court  of  record  on  an  indictment  previously  ^^^e. 
found,  it  shall  and  may  be  lawful  for  said  sheriff  or  deputy,  if  the 

crime  charged  is  bailable,  to  recognize  said  offender  and  take  bail 
in  nature  of  a  recognizance,  for  his  appearing  at  the  next  succeed- 
ing court  of  the  county,  where  such  offender  ought  to  answer,  and 
where  such  bill  hath  been  found,  to  be  guided  and  directed  in  this 
matter  by  the  same  rules  and  regulations  as  have  heretofore  gov- 
erned justices  of  the  peace. 

11.  Every  person,  accused  of  any  crime  or  misdemeanor  what- ^^'■^°"®  ^9-   , 

•^    ■*■  "^  .  cuseci  entitled. 

ever,   shall  be  entitled  to  counsel  in   ah  matters  which  may  be  to  counsel, 
necessary  for  his  defence,  as  well  to  facts  as  to  law. 

12.  In  aU  criminal  prosecutions,  which  may  be  had  by  indict- J^°J°'^^'^''^^"^ 

*■  ,  .  ,  to  be  Quasliecl 

ment  or    presentment,  it  shall   be  sufficient,   for   all  intents    and  or  judgment 
purposes,  that  the  bill  shall  contain  the  charee  against  the  criminal,  ^"'^^'H^"'^  i 

,  ...  .  merelv  torinEil 

expressed  in  a  plain,  intelligible  and  explicit  manner  ;  and  no  bill  objections, 
of  indictment  or  presentment  shall  be  quashed,  or  judgment  arrest- 
ed, for  or  by  reason  of  any  informality   or  refinement,  where  there 
appears  to  the  court  sufficient  in  the  face   of  the   indictment  to 
induce  them  to  proceed  to  judgment. 

13.  It  shall  and  may  be  lawful  for  every  defendant,  who  shall  ^g^^fg^^^fj^gl 
be  charged  by  indictment  with  the  publication  of  a  libel,  to  prove,  the  defendant 
on  the  trial  for  the  same,  the  truth  of  the  facts  alleged  in  the  bill  S^n  ev-^^ 
of  indictment,  and  upon  the  introduction  of  testimony,  if  it  shall  idence. 
appear  to  the  satisfaction  of  the  jury  that  the  facts  are  true,  with 

the  publication  whereof  the  defendant  stands  charged,  such  evi- 
dence shall  be  deemed  to  be  a  complete  justification  of  the  charge. 

14.  In  all  cases  of  felonious  homicide,  where  the  assault  shall  gj^^]^"s^"u^one 
have  been  committed  in  one  county  within  this  State  and  the  per-  countj^  and  the 
son  assaulted  shall  die  in  any  other  county  thereof,  the  offender  another^  the 
shall  and  may  be  indicted  and  punished  for  the  crime  in  the  countv  offender  maybe 
where  the  assault  was  made.  '  assauh  was  '^' 

15.  In  all  cases  of  felonious  homicide,  when  the  assault  shall  made. 

9.  1777,  c.  115,  s.  15. 

10.  1797,  c.  474,  s.  4. 

11.  1777,  c.  115,  S.  85. 

12.  37  Hen.  8,  c.  8.— 1784,  c.  210,  s.  2.— 1811,  c.  809. 

13.  1803,  c.  632. 

14.  1831,  c.  22,  s.  1. 

15.  1831,  c.  22,  S.  2. 

VOL.  I.  28 


218  CRIMINAL   PROCEEDINGS.  [ChAP.  XXXV. 

When  an  as-  have  been  committed  within  this  State,  and  the  person  assaulted 
^^^hirstate^  shall  die  without  the  limits  thereof,  the  offender  shall  and  may  be 
and  the  death  indicted  and  punished  for  the  crime  in  the  county  where  the  as- 
the  offender  ^^"^*'  ^^^  made,  in  the  same  manner  to  all  intents  and  purposes  as 
maybe  tried  in  if  the  person  assaulted  had  died  within  the  Hmits  of  the  State, 
this  State.  ^q    j£  ^^^  person,  being  arraigned  upon  or  charged  with  any 

termed  for  a  de-  indictment  for  felony  or  misdemeanor,  shall  stand  mute,  of  malice, 
fendant  when  qj.  ^[\\  not  answer  directly  to  the  indictment,  in  every  such  case, 
onacrimimir  it  shall  and  may  be  lawful  for  the  court  to  order  the  proper  officer 
charge.  to  enter  a  plea  of  "not  guilty"   on  behalf  of  such  person  ;  and 

the  plea,  so  entered,  shall  have  the  same  force  and  effect  as  if  such 
person  had  actually  pleaded  the  same. 
In  capital  cases,      17.  Whenever  any  judge   of  the  superior  courts  shall  deem  it 
issVe'^alpeci^a^  necessary  to  a  fair  and  impartial  trial  of  any  person  or  persons, 
venire  facia».    charged  with  a  capital  offence,  he  is  hereby  authorized  and  em- 
powered to  issue  to  the  sheriff  of  the  county,  in  which  such  court 
maybe,  a  special  writ  oi  venire  facias  commanding  him  to  sum- 
mon such  number  of  the  freeholders   of  said   county,  as  he   the 
judge  may  deem  sufficient,  (such  number  being  designated  in  said 
writ,)  to  appear  on  some  specified  day  of  said  term   as  jurors  of 
said  court  ;  and  it  shall  be  the  duty  of  the  sheriff  to  proceed  forth- 
with to  execute  said  writ,  and  return  it  to  the  clerk  of  said  court 
on  the  day,  to  which  the  same  shall  be  returnable,  with  the  names 
of  the  jurors  he  shall  have  summoned. 
Penalty  on  the       jg.   If  any  sheriff  shall  neglect  or  fail  duly  to   execute  and  re- 
executino-  it,     turn  such  writ  of  venire  facias,  he  shall  be  fined  by  the  court  not 
and  the  jurors  exceeding  One  hundred   dollars  ;  and   all  jurors,  so   summoned, 
ance.  '  shall  attend  from  day  to   day  until  discharged  by  the  court,  under 

the  same  rules,  regulations  and  penalties  as  are  now  prescribed  by 
law  for  other  jurors. 
In  capital  cases      jg^  Everv  person  on  trial  for  his  life  may  make  a  peremptory 

defendant  may    ,    ,,  r  t-       r        •  i  •       ti  .   •   i     r  •  i       ■    i 

challenge         challenge  01  thirtynve  jurors,  and  m  all  trials  lor  cnmes  and  misde- 
thirtyfive  ju-     meanors,  other  than  capital,  the  defendant  or  defendants  shall  have 

rors  111  otncrs  .  •  .  • 

four,  and  may  the  right  of  challenging  peremptorily  and  without  shewing  cause 
have  the  assist- (.]^g  number  offour  jurors  ;  and  to  enable  the  defendants  to  exer- 
in  making  such  cise  this  right,  it  shall  be  the  duty  of  the  clerk  in  all  such  trials  to 
challenges.       lead  over  the  names  of  the  jurors  on  the   panel,  in  the  presence 
and  hearing  of  the  defendant  or  defendants,  his,  her  or  their  coun- 
sel, before  the  jury  shall  be  empanelled  to  try  the  issue,  and  in  all 
cases  of  trial,  whether  for  capital  or  inferior  offences,  the  defen- 
dant or  defendants  shall  have  the  aid  and  assistance  of  counsel  in 
making  challenges  to  the  jury. 
In  capital  cases      20.  In  all  Criminal  cases   of  a  capital  nature,  the  prosecuting 
counsel  may      officer  on  behalf  of  the  State  shall  have  the  right  of  challenging 
challenge  four  peremptorily  four  jurors,  Provided  said  challenge  is  made  before 
torily.  ^^"^^"'^  the  juror  is  tendered  to  the  prisoner  ;  and  if  he  will  challenge 
more  than  four  jurors  he  shall  assign  of  his  challenge  a  cause  eer- 
ie. Amendment. 

17.  1830,  c.  27,  s.  1. 

18.  1830,  c.  27,  s.  2. 

19.  1777,  c.  115,  s.  85.-1812,  c.  833.— 1801,  C.  592,  s.  1.— 1S26,  c.  9. 

20.  1827,  c.  10.— 33  Edw.  1,  Stat.  4. 


Chap.  XXXV.]  criminal  proceedings.  219 

tain,  and  in  all  other  cases  of  a  criminal  nature  no  challenge  shall 
be  allowed  in  behalf  of  the  State,  except  for  a  cause  certain,  and 
in  all  cases  of  challenge  for  cause  certain,  the  same  shall  be  in- 
quired of  according  to  the  custom  of  the  court. 

21.  If  any  person,   indicted  for  any  felony   or  misdemeanor.  Peremptory 
shall  challenge  peremptorily  a  greater  number  of  the  men  returned  yond  the  num- 
to  be  of  the  jury,  than  such  person  is  entitled  by  law  so  to  chal-  b^r  allowed  by 
lenge  in  any  of  the  said  cases,   viz.    thirtyfive   in  cases   of  capital  void, 
felony  and  four  in  other  cases,  every  peremptory  challenge,  be- 

'yond  the  number  allowed  by  law  in  any  of  the  said  cases,  shall  be 
entirely  void,  and  the  trial  of  such  person  shall  proceed  as  if  no 
such  challenge  had  been  made. 

22.  Upon  the  conviction   of  any  felon  for  robbing  or  stealing  On  conviction 
any  money,  goods  or   chattels  of  any  description  whatever,  the  robbino-°or  °^ 
person  or  persons,  from  whom  such  goods,  money  or  chattels  were  stealing  goods, 
robbed  or  stolen,  shall  be  entitled  to  restitution   thereof ;  for  the  s^all  be^e-  ^ 
more  certain  effecting  of  which,  it   shall  be  in  the  power  of  the  stored. 
court,  before  whom  such  conviction  is  had,  to  award  restitution  of 

the  articles  so  robbed  or  stolen,  and  to  make  all  such  orders  and 
issue  such  writs  of  restitution  or  otherwise  as  may  be  necessary  for 
that  purpose. 

23.  When  an  indictment  shall  be  found  by   any  of  the  grand  t^owt  may,  in 
jurors  within  this   State  and  a  nolle  prosequi    afterwards  entered,  direct  the  pros- 
it shall  and  may  be  lawful,  on  apphcation,  for  the  court,  in  which  ^^utor  to  pay 
such  indictment  was  preferred,  to  say  and  determine  whether  such 
prosecution  was  promoted  on  frivolous  or  malicious  pretences  or 

grounds  ;  if  so,  to  decree  that  the  prosecutor  should  be  subject 
to  pay  and  discharge  the  costs  thereof. 

24.  The  several  courts  of  law  are  empowered  and  authorized,  .^^'^^"^^'P^y 

,.       •  r    1         ^    r      ^  •   i     •  .     .      ,  be  granted  by 

upon  application  oi  the  defendant,  to  grant  new  trials  in  criminal  the  court  when 
cases,  when  the  defendant  or  defendants  are  found  guilty,  in  the  ^^^  defendant 

,11  ,  ,     .  ,        "^    .     .         IS  convicted. 

same  manner  and  under  the  same  rules,  regulations  and  restrictions 
as  m  civil  cases. 

25.  It  shall  be  the  duty  of  the   county  and  superior  courts  of  ^e  a"^ointed  ^° 
law  to  appoint  a  special  day  in  their  respective  terms,  on  which  for  the  trial  of 
the  State's  business  shall  be  taken  up  and  disposed  of,  and  no  per- ^^^|gf,*^^^g^gl°4 
son,  recognized  or  summoned  to  attend  on  indictments  found,  shall  must  give  no- 
be  entitled  to  demand  or  receive  any  compensation  for  attending?''^®'  '^"^ff  '""^^ 

1  -ri-ii*^!  ^1-1         ■  -1  issue  subpoe- 

any  time  previous  thereto  :  Frovided,  that  nothing  herein  contained  nas,  &c.  ac- 
shall  be  construed  to  prevent  the  court  from  proceeding  with  the  cordmgly. 
State's  business  on  a  succeeding  day  or  days,  until  the  whole  is 
finished,  and  that  in  capital  cases,  witnesses  and  other  persons  may 
be  required  to  attend  on  a  day  preceding  the  State's  day  and  be 
paid  accordingly.  It  shall  be  the  duty  of  the  clerks  of  the  several 
courts,  where  an  order  is  made  designating  the  State's  day,  to  give 
notice  thereof  by  advertisement  at  the  court  house  and  three  or 
more  public  places  in  their  respective   counties,   and  the  clerks 

21.  22  Hen.  8,  c.  14.     Amended.  ,■    . 

22.  21  Hen.  8,  c.  11. 

23.  1797,  c.  474,  s.  1. 

24.  181.5,  c.  89.5.     Amended. 

25.  1822,  c.  1133,  s.  2,  3  and  4. 


220  CRIMINAL   PROCEEDINGS.   [ChAP.  XXXV. 

shall  issue  subpoenas  and   take  recognizances,  conformably  to  the 
provisions  of  this  section  of  this  act. 
How  the  petit       ^^-   In  the  trial  of  all  pleas   and  prosecutions  for  offences  not 
jurors  shall  be  capital,  unless  in  cases  where  the  court  may  otherwise  direct,  pe- 
nTt°caprtaT^^^  tit  jurors,  as  well  talesmen  as  those  of  the  original  panel,  shall  be 
sworn  or  affirmed  (as  the  case  may  be)  well  and  truly  to  try  all 
issues  of  traverse  that  shall   come  before  them  during  the  day  ; 
nothing  herein  contained  however  shall  be  construed  to  affect  in 
any  degree  the  usual  challenges  in  law,  either  to  the  whole  or  any 
of  said  jurors. 
Pay  of  witness-     27.  All  witnesses,  who  shall  be  summoned  or  recognized  to 
es  in  state ^^^  appear  in  behalf  of  the  State  in  any  prosecution  now  depending  or 
they  shall  be    to  depend  in  any  of  the  superior  courts  of  law  and  courts  of  pleas 
paid.  gj^j^  quarter  sessions,  and  shall  attend  accordingly,  shall  be  allowed 

the  same  pay  for  their  daily  attendance  and  mileage  as  is  allowed 
to  witnesses  attending  in  civil  suits,  and  such  fees  for  attendance 
shall  be  paid  by  the  defendant  upon  conviction  only,  and  if  the 
defendant  be  acquitted  on  any  charge  of  an  inferior  nature,  the 
court  may  at  their  discretion  order  the  prosecutor  to  pay  the  costs, 
if  such  prosecution  shall  appear  to  have  been  frivolous  or  ma- 
licious ;  but  if  the  court  shall  be  of  opinion  that  such  prosecution 
was  not  either  frivolous  or  malicious,  and  a  greater  number  of  wit- 
nesses have  been  summoned  by  such  prosecutor,  than  were  in  the 
opinion  of  such  court  necessary  to  support  the  charge,  they  may 
notwithstanding  order  the  prosecutor  to  pay  the  attendance  of  such 
unnecessary  witnesses,  if  it  shall  appear  that  they  were  summoned 
at  his  special  instance  and  request. 
Judges  of  the  28.  The  judges  of  the  Superior  courts,  in  their  respective  courts, 
superior  courts  g^j-g  f^^^  authorized  and  empowered  to   receive,  hear  and  deter- 

may  mitigate  .J  .  .  „     ,,     ^  ,  '       .         , 

or  remit  recog- mme  on  the  petition  of  all  persons,  who  may  conceive  they  merit 

mzances,  both  relief  on  their  recognizances  forfeited,  and  to  lessen  or  absolutely 

judgment.        remit  the  same,  and  to  do   all  and  any  thing  therein,  as  they  shall 

deem  just  and  right  and  consistent  with  the  welfare  of  the  State  as 

well  as  the  persons  praying  such  relief,  which  power  shall  extend 

to  the  relief  of  those  persons,   against  whom  final  judgment  hath 

been  entered  and  execution  awarded  accordingly. 

Clerks  to  re-         29.  It  shall  be  the  duty  of  the  clerks  of  the  several  superior 

^""^4^^®?^^®  courts,  on  the  remission  of  any  forfeited  recognizance,  on   which 

feiture  has       the  money  hath  been  collected  and  paid  into  their  office,  to  refund 

been  paid.        gj^^j  p^y  ^^ck  to  the  person  entitled  to  the  same,  the  full  amount  of 

money  so  paid  into  his   office,  or  so  much  thereof  as  shall  be 

remitted. 

County  trustee       30.  In  case  the  clerk  has  paid  the  same  to  the  county  trustee, 

^"such  remitted^  ^^  ^hall  be  the  duty  of  the  county  trustee,  and  he  is  hereby  required 

forfeiture  has    to  pay  and  refund  to  the  person  entitled  the  amount  thereof,  on 

to^him.^^'^  °^^^  ^^^  producing  an  attested  copy  of  the  record  from  the  clerk  of  the 

court,  certifying  that  such  recognizance  hath  been  remitted  or  mit- 

26.  1822,  C.  1133,3.  1. 

27.  1800,  C.  558,  S.  1. 
23.  1788,  C.  292,  s.  1. 

29.  1795,  C.  442,  S.  1. 

30.  1795,  C.  442,  8.  2. 


Chap.  XXXV.]  criminal  proceedings.  221 

igated,  signed  with  his  own  proper  name,  with  the  seal  of  the  court 
affixed  thereto,  which  certificate  shall  be  a  sufficient  voucher  for 
the  trustee  for  the  amount  expressed  in  the  certificate. 

31.  The   several  county  courts  of  pleas   and  quarter  sessions  County  courts 
shall  have  power  to  remit  or  mitigate  all  fines  by  them  inflicted,  j||^jfg^ y^^^^  ^^^^ 
and  all  forfeitures  on  recognizances  previous  to  entering  final  judg-  forfeitures  be- 
ment  thereon  :  Provided  there  are  seven  justices  on  the  bench,  f"""^  judgment. 
three  of  whom  shall  have  been  present  when  such  fine  was  inflict- 
ed, when  the  remission  or  mitigation  of  a  fine  is  prayed  for  :  Pro- 
vided also,  that  if  any  person  or  persons  shall  be  dissatisfied  with  Appeals  allow- 
the  judgment  or  decree  of  any  county  court,  entering  final  judg-  ment^'on'fof-' 
menl  against  him  or  them  on  forfeited  recognizances,  he  shall  be  felted  recogni- 
entitled  to  an  appeal  to  the  superior  court  of  the  county,  under  the  ^^'^'^^^• 
same  rules  and  regulations  as  other  appeals,  which  superior  court 

is  hereby  authorized  to  determine  on  the  premises  as  in  other 
cases  in  this  act  directed  :  Provided,  that  nothing  contained  in 
this  act  shall  be  construed  to  debar  the  county  soHcitor  or  attorney 
for  the  State  from  appealing  on  any  judgment  given,  whenever  he 
shall  conceive  the  State  has  been  injured,  but  that  in  all  such 
determinations,  he  is  hereby  expressly  required  to  pray  an  appeal, 
which  the  said  court  shall  grant  accordingly. 

32.  No  execution  shall  issue  upon  a  forfeited  recognizance  or  to  No  execution 

,,  /•        •  1  •!  •       _r      •      1        •  1  •  1  to  issue  on  a 

collect  a  tine  imposed,  until  a  sarejacias  has  issued  agamst  the  per- forfeited  recog- 
son,  who  has  forfeited  his  recognizance  or  upon  whom  the  fine  has  mzance  &c. 
been  imposed,  and  judgment  thereon.  sdre  facias. 

33.  When  any  clerk  of  the  superior  court   of  law  or    court    ofcierks  to  issue 
pleas  and  quarter  sessions  shall  have    occasion  or   be  required  to  y°/(^^ against 
issue  scire  facias  or  other  process,  against  any  person  or  persons, "the  principal 
who  shall  have  forfeited  any  recognizance  or  recognizances,  entered  ^^j^^g^.^^j^j''.^^^ 
into  as  principal  in  any  one  case,  and  who  shall  have  given  one  or  zance. 
more  persons  as  bail  or  security  in  such  recognizance  or  recogni-  J 
zances,  or  otherwise  caused    such   bail  or   securities    to    become 

bound  or  recognized  for  or  in  behalf  of  such  principal,  as  afore- 
said, in  any  one  case,  as  aforesaid,  and  such  sureties  shall  also  have 
forfeited  such  recognizance  or  recognizances,  so  entered  into  as 
aforesaid,  it  shall  be  the  duty  of  such  clerk  to  issue  a  joint  scire 
facias,  or  such  other  joint  process  as  may  be  deemed  legal  and 
necessary,  against  such  principal  including  such  surety  or  sureties, 
therein  designating  who  are  principals  from  those  who  are  sureties, 
also  specifying  therein  the  respective  sums  orpenalties^whicheach 
shall  have  forfeited  and  for  which  they  are  required  to  answer  by 
virtue  of  said  process. 

34.   The  sheriff  or  other  officer,  who   may  be  authorized    and  ^P^  5"*^.^ 

J  ,       '  .         ^      .    •'  1     11    1     scire  jacias  to 

required  to  serve  or  execute  such  scire  Jacias  or  process,  shall  do  be  executed. 

so,  by  serving  a  copy  of  such  process  on  each  of  the  defendants, 

or  by  leaving  a  copy  at  the  place  of  residence  of  such   delinquent 

or  delinquents,  or  in  such  other  manner  as    heretofore  required  by 

law. 

31.  1788,  c.  292,  s.  2. 

32.  1777,  C.  115,  S.  48. 

33.  1812,  c.  836,  s.  1. 

34.  1812,  c.  836,  s.  2. 


222  CURRENCY.  [Chap.  XXXVI. 

Such  scire  35.  When  the  clerk  or  clerks  aforesaid  shall  enter  said    suit  on 

teredVs'one^'^'the  record  or  records  of  their  respective  courts,  to  which  said  pro- 
suit  against  the  cess  or  suit  shall  be  returnable,  he  shall  consolidate  and  enter  the 
Eis^sureties.  Same  SO  as  to  make  but  one  suit,  and  on  which  it  shall  be  lawful  to 
One  set  of  recover  or  otherwise  receive  but  one  set  of  costs,  such  as  was 
costs  only  to  be  fQj.jj-jgj.jy  recoverable  on  a  sinde    suit  of  the  description  aforesaid, 

collected  except  ,         ,     •^.™,     ^         /.  •  r  i  i     i        i  i 

when  the  de-  the  sheriff 's  lees  tor  service  or  process  excepted  :  and  should  any 
fendants  plead  gf  ^}^g  clerks  or  Other  pe^rsons  aforesaid  be  guilty  of  charging  in 
their  bill  of  costs  or  othei-wise  exacting  any  higher  or  greater  costs, 
than  by  law  shall  be  due  on  one  single  suit  as  aforesaid,  he  shall  be 
liable  to  a  penalty  of  one  hundred  dollars, -K)- be  recovered  and  paid 
to  the  use  of  the  person  or  persons-injured  :  Provided,  that  nothing 
herein  contained  shall  be  construed  so  as  to  prevent  any  defendant 
in  such  suits  from  severing  and  pleading  separately,  in  which  case 
it  shall  be  at  the  discretion  of  the  court  to  award  separate  costs. 

35.   1812,  c.  836,  s.  3.  "  . 


Note. — References  to  Adjudged  Cases. 

Sect.  1.  State  vs.  Webb,  1  Hay.  103.     State  vs.  Irwin,  ib.  112.  ' 

Sect.  6.  State  vs.  Cain,  1  Hawks,  352. 

Sect.  11.  State  vs.  Dickens,  1  Hay.  406. 

Sect.  12.  State  vs.  Jeffreys,  Tayl.  216.  State  vs.  Newmans,  2  Car.  Rep.  74. 
Statt  vs.  Sparrow,  N.  C-  Term  R.  93.  State  vs.  Cherry,  3  Murph.  7.  State  vs.  Far- 
rier, 1  Hawks,  487.     State  vs.  Moses,  2  Dev.  452. 

Sect.  17.  State  vs.  Benton,  2  Dev.  and  Bat. 

Sect.  27.  State  vs.  Stewart,  1  Car-  Rep.  524.  State  rs.  Lumbrick,  ib.  543.  Office 
vs.  Gray,  2  Car.  Rep.  424. 


^  CHAPTER  36. 

CURRENCY. 

AN  ACT  CONCERNING  THE  CURRENCY  OF  THIS  STATE. 

1.  Be  it  enacted  by  the  General  Assembly  of  the  State  ofJVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
the^'united^  That  the  currency  of  the  United  States  shall  be  recognized  as  the 
States  recog-  lawful  Currency  of  this  State,  and  it  shall  be  lawful  for  the  records 
ords'^&c^U)' be  and  all  other  papers  and  proceedings  in  this  State  to  be  kept  in 
kept  in  dollars  dollars  and  cents.  Provided,  that  nothing  herein  expressed  shall 
an  cents.  operate  to  prevent  any  records,  papers  or  proceedings  from  being 
kept  in  the  former  currency  of  this  State. 


Chap.  XXXVIL]  deeds  and  conveyances. 

CHAPTER  37. 

DEEDS  AND  CONVEYANCES. 


223 


\',i,b.y,Cl(^^     (It'Mll^^ 


an  act  concerning  deeds  and  conveyances  of  lands  and 
slaves,  mortgages  and  powers  of  attorney,  their  exe- 
cution, probate  and  registration. 


6. 


7. 


Section 

1.  Deeds  to  be  proved  or  acknowledged 

and  registered  in  the  county  where 
the  lands  lie — Deeds  so  registered, 
to  pass  lands  without  livery,  &c. 

2.  Copy  of  a  deed  from  the  register's 

office,  good  evidence  when  the  origi- 
nal is  lost. 

3.  Grantees  may  have  witnesses  sum- 

moned to  prove  their  deeds. 

4.  County  court  may  issue  a  commis- 

sion to  take  probate  when  the  wit- 
nesses or  grantor  are  out  of  the 
State. 

5.  How  deeds  &c.  executed  out  of  the 

State,  but  within  the  United  States, 

may  be  proved  and  registered. 
How  proved    and   registered   when 

made  in  foreign  countries. 
Further    provisions  for  the    probate 

and  registration  of  such  deeds,  &c. 

8.  County  court  may  issue  a  commission 

to  foreign  parts  to  take  probate. 

9.  How  deeds  executed  by  husband  and 

wife  shall  be  proved  or  acknow- 
ledged and  registered — Wife  to  be 
privately  examined. 

10.  Provision  when  the  wife  is  sick  or 

resident  of  another  county. 

11.  Form  of  the  commission  to  take  the 

private  examination  of  a  fome  co- 
vert. 

Conveyance  under  a  power  of  attor- 
ney from  husband  and  wife  valid  to 
pass  lands. 

How  deeds  and  powers  of  attorney 
from  husband  and  wife,  living  out 
of  this  State,  but  in  the  United 
States,  may  be  proved  and  register- 
ed. 

How  when  husband  and  wife  reside 
in  foreign  parts. 

Powers  of  attorney  for  the  sale  of 
lands  to  be  proved  &.c.  and  register- 
ed. 


12. 


13. 


14. 


15. 


Section 

16.  Other  powers  of  attorney,  how  to  be 

proved  and  registered. 

17.  Gifts  of  slaves  must  be  in  writing 

attested  and  registered — Proviso 
as  to  advancements  to  children . 

18.  Deeds  of  gift  to  be  proved  and  regis- 

tered. 

19.  All  sales  of  slaves  must  be  in  writing 

attested  and  registered,  except  bona 
fide  sales  accompanied  with  a 
transfer  of  possession. 

20.  All  written  transfers  of  slaves  must 

be  registered  in  the  county  where 
the  purchaser  resides,  unless  the 
seller  is  to  retain  possession,  &c. 

21.  All  written  transfers  of  slaves  to  be 

proved  on  any  trial  by  the  subscrib- 
ing witnesses  if  to  be  found. 

22.  Certain  limitations  of  slaves  by  deed 

to  be  valid. 

23.  No  mortgage  or  deed  in  trust   good 

against  creditors,  unless  registered 
within  six  months. 

24.  Mortgage    or    deed  in    trust   good 

against  creditors,  &c.  only  from  the 
date  of  the  registration. 

25.  Clerks  of  the  county  court  authorized 

to  take  probate  of  mortgages  and 
deeds  in  trust. 

26.  Register  to  endorse  on   each  mort- 

gage &c.  the  day  he  received  it  and 
to  register  it  in  the  order  of  delivery. 

27.  What  remedy  the  last  mortgagee  shall 

have  when  there  is  more  than  one 
mortgage  in  force  at  the  same  time. 
23.  Where  an  action  is  brought  to  recover 
money  secured  by  mortgage  or  for 
the  mortgaged  property,  the  de- 
fendant may  be  discharged  by 
bringing  the  money  due  on  the 
mortgage  into  court — Proviso, 
where  the  defendant  denies  the 
right  of  redemption,  &c. 


224 


DEEDS  AND  CONVEYANCES.  [ChAP.  XXXVII. 


Section? 

29.  Marriage  settlements  to  be  proved 

and  registered. 

30.  What  marriage  settlements  shall  be 

good  against  creditors,  &c. 

31.  Infant  trustees  how  to  convey  lands. 


Section 

32.  Errors  in  the  registration  of  deeds, 

&c.  how  to  be  corrected,  &c. 

33.  Further  time  allowed  for  registering 

deeds,  &c. 


Deeds  to  be 
proved  or  ac- 
knowledged 
and  registered 
in  the  county 
where  the  lands 
lie. 


Deeds  so  reg- 
istered to  pass 
lands  without 
livery,  &c. 

Copy  of  a  deed 
from  the  regis- 
ter's office  good 
evidence  wlien 
the  original  is 
lost. 


Grantees  may 
have  witnesses 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  no  conveyance,  or  bill  of  sale,  for  land,  (other  than 
mortgages,)  in  what  manner  or  form  soever  drawn,  shall  be  good 
and  available  in  law,  unless  the  same  shall  be  acknowledged  by  the 
vendor  or  grantor,  or  proved  by  one  or  more  evidences  upon  oath, 
either  before  one  of  the  judges  of  the  supreme  court  or  of  the 
superior  court,  or  in  the  court  of  the  county  where  the  land  lieth, 
and  registered  by  the  public  register  of  the  county,  where  the  land 
lieth,  within  two  years  after  the  date  of  the  said  deed  ;  and  that  all 
deeds  so  done  and  executed  shall  be  valid  and  pass  estates  in  land 
or  right  to  other  estate,  without  livery  of  seizin,  attornment  or 
other  ceremony  in  the  law  whatsoever. 

2.  The  registry  or  copy  of  the  record  of  any  deed  or  convey- 
ance, registered  or  recorded  as  by  this  act  prescribed,  and  attested 
by  the  register,  shall  and  may,  where  the  original  deed  or  convey- 
ance is  lost,  be  given  in  evidence  in  any  court  of  record,  and  shall 
be  held  and  is  hereby  declared  to  be  full  and  sufficient  evidence  of 
such  deed  or  conveyance. 

3.  The  grantee  or  grantees  in  any  deed  for  land,  or  in  any  deed 
summoned  to  of  gift,  bill  of  sale,  or  mortgage  of  slaves,  or  other  personal 
prove  their       property,  requiring  registration,  shall  and  may  at  his  or  their  own 

expense,  on  motion  to  the  court  of  pleas  and  quarter  sessions  of 
the  county  where  the  land  lies,  or  where  the  deed  of  gift,  bill  of 
sale  or  mortgage  of  chattels  is  required  to  be  registered,  obtain  a 
summons  for  any  one  or  more  of  the  subscribing  witnesses  to  such 
conveyance,  which  shall  be  signed  by  the  clerk  and  directed  to  the 
sheriff",  commanding  him  to  summon  such  witness  to  appear  at  the 
next  term  of  said  court,  and  give  his  evidence  concerning  the 
execution  of  such  conveyance,  under  the  penalty  of  forty  dollars, 
and  the  sheriff"  shall  and  is  hereby  required  to  execute  the  same, 
at  least  five  days  before  the  term,  to  which  the  same  is  returnable, 
and  make  due  return  thereof;  and  if  any  witness  so  summoned 
shall  fail  to  appear,  on  the  return  of  such  summons,  the  court  shall 
give  judgment  against  him  for  the  penalty  aforesaid,  for  which 
execution  may  be  taken  out,  either  against  his  body  or  goods,  by 
him  or  them  at  whose  instance  he  was  summoned,  unless  he  show 
sufficient  cause,  at  the  next  succeeding  term,  for  not  having 
appeared  to  give  his  evidence. 

4.  Whenever  a  deed  for  the  conveyance  of  lands  in  this  State, 
or  of  slaves,  or  other  personal  property  requiring  registration,  has 


County  court 
may  issue  a 
commission  to 


1.  1715,  c.  7,  s.  1.— 1818,  c.  963,  s.  2.— 1777,  c.  115,  S.  2. 

2.  1756,  c.  58,  s.  3. 

3.  1756,  c    58,  s.  4. 

4.  1784,  c.  203,  s.  3.— 1810,  c.  803,  s.  2. 


-1756,0.  58,  s.  3. 


Chap.  XXXVII.]  deeds  and  conveyances.  225 

been  or  may  be  executed,  and  the  subscribing  witness  or  witnesses,  take  probate 
or  grantor,  are  without  the  State,  then  and  in  that  case  it  shall  and  Besses ^or^Tant- 
may  be  lawful  for  the  court  of  pleas  and  quarter  sessions  of  the  or  are  out  of 
county,  in  which  such  lands  lie,  or  in  which  such  deed  of  slaves  *  ^   ^^^^' 
or  other  personal  property  is  required  to  be  registered,  to  direct 
a  dedimus  to  two  or  more  commissioners  in  the  State,  where  the 
subscribing  witness    or  witnesses   reside,    or   where  the    grantor 
resides,  empowering  them  or  either  of  them  to  take  the  acknowl- 
edgment or  probate  of  such  deed,  and  to  return  the  same,  with  a 
certificate    of  such   probate  or  acknowledgment   to    said    court, 
whereon  such  dedimus  and  certificate  of  probate   or  acknowledg- 
ment  and  the  deed  itself  shall  be   admitted  to  registration,  which 
registration  shall  be  good  and  effectual  to  all  intents  and  purposes  : 
Provided  always,  that  in  case  of  the  death  of  a  subscribing  wit- 
ness or  witnesses  to  any  deed  or  other  instrument,  requiring  regis- 
tration,  satisfactory  proof  of  the  handwriting  of  such    deceased 
witness,   together  with  proof  of  the  handwriting  of  the  grantor, 
shall  be  sufficient  for  that  purpose. 

5.  Where  any  conveyance  of  lands  in  this  State,  or    power  of  How  deeds, 
attorney  for  the  conveyance  of  the   same,  or  any  bill    of  sale   for  ^^^^o^^^e*^'^ 
slaves,  or  power  of  attorney  for  selling  the   same,  may  have  been  State,  but  with- 
heretofore  or  shall  be  hereafter  executed  by  any  person  or  persons,  states  ^ay^be 
residing  in  any  of  the  United  States    other  than    this  State,  or  in  proved  and  reg- 
any  of  the  territories  of  the  United   States,  or  in  the   district    of  ^®^^'^'®*^" 
Columbia,  and  shall  be  personally  acknowledged  by  the  person  or 
persons  executing  the  same,  or   proved  by  a    subscribing    witness 
thereto,  before  some  one  of  the  judges  of  supreme  jurisdiction,  or 
before  some  one  of  the  judges  of  the  superior  courts  of  law  or  circuit 
courts  of  law  of  superior  jurisdiction  within  said  state,  territory  or 
district,  and  an    attestation    of  such    acknowledgment   or  probate 
shall  be  endorsed  or  affixed  to  said  deed,  bill  of  sale  or  power  of 
attorney  by  the   said  judge,  and  a  certificate    of  the   governor    of 
said  state  or  territory,  or,  where  the  said  deed  is  made  in   the  dis- 
trict of  Columbia,  a    certificate  of  the  secretary    of  state  of  the 
United  States,  shall  be  annexed  to  said  deed,  bill  of  sale  or  power 
of  attorney  that  the  judge,  before  whom  said    acknowledgment  or 
probate  was  taken,  was,  at  the  time  of  taking  the  same,  one  of  the 
judges  of  the  courts  of  supreme  jurisdiction  or  one  of  the  judges 
of  the  supreme  courts  of  law  or  circuit    courts  of  law  of  superior 
jurisdiction  within  said  state  or  territory,  or  within  the    district   of 
Columbia,  or  where  such  conveyance,  bill  of  sale  or  power  of  attor- 
ney shall  be  so  acknowledged  or  proved  before  any  commissioner, 
appointed  by  the  governor  of  this  State  according  to  law,  and  cer- 
tified by  him  as  by  law  required,  such  deed,  bill  of  sale    or  power 
of  attorney,  being  exhibited  in  the  court  of  pleas  and    quarter  ses- 
sions of  the  county  in  which  such  lands  lie  or  in  which  the   pur- 
chaser of  such  slave  or  slaves  resides  or  the  person  empowered  to 
sell  such  slaves  may  reside,  or  to  one  of  the  judges  of  the  supreme 

5.  1827,  c.  18,  s    1.— 1830,  C.  31,  s.  1. 

VOL.  I.  .        29 


226 


DEEDS  AND  CONVEYANCES.  [ChAP.  XXXVII. 


How  proved 
and  registered 
when  made  in 
foreign  coun- 
tries. 


Further  pro- 
visions for  the 
probate  and 
registration  of 
such  deeds,  &c. 


County  court 
may  issue  a 
commission  to 
foreign  parts  to 
take  probate. 


court  or  of  the  superior  courts  of  this  State,  shall  be  ordered  to 
be  registered  with  the  certificates  thereto  annexed,  and  such  deeds, 
bills  of  sale  or  power  of  attorney  with  the  certificates  thereto 
annexed  having  been  registered,  pursuant  to  such  order,  in  the 
county,  in  which  such  lands  lie,  or  in  which  the  purchaser  of  such 
slave  or  slaves  may  reside,  shall  be  valid  in  law  to  convey,  or  to 
empower  to  convey,  all  the  estate  and  title  which  such  person  or 
persons  may  or  shall  have  in  any  such  lands  or  slaves  thereby  con- 
veyed or  authorized  to  be  conveyed,  and  shall  be  received  in  evi- 
dence in  any  court  of  law  or  equity  within  this  State  without 
further  proof  thereof. 

6.  All  deeds  and  conveyances  of  land,  lying  within  this  State, 
and  all  powers  of  attorney  to  convey  such  land,  made  in  foreign  parts 
or  in  parts  beyond  the  hmits  of  the  United  States,  which  shall  be  re- 
mitted hither  and  proved  as  prescribed  in  the  first  section  of  this 
act,  or  which  shall  be  personally  acknowledged  or  proved  before 
the  chief  magistrate  of  any  city,  town  or  corporation  in  the  cotmtry, 
in  which  such  deed  or  conveyance  or  power  of  attorney  was  exe- 
cuted, and  an  attestation  thereof  affixed  thereto,  shall,  upon  being 
exhibited  to  the  court  of  pleas  and  quarter  sessions  of  the  county 
in  which  the  land  lies,  or  to  one  of  the  judges  of  the  supreme  or 
superior  courts  of  this  State,  be  ordered  to  be  registered  and  shall 
be  registered  in  the  same  manner  as  if  such  deed  or  conveyance 
or  power  of  attorney  had  been  proved  as  prescribed  in  the  first 
section  of  this  act,  and  when  so  registered  shall  be  good  and  vahd 
in  law  to  all  intents  and  purposes,  and  shall  be  received  in  evidence 
without  further  proof. 

7.  Whenever  a  deed  for  the  conveyance  of  lands,  or  negroes 
or  other  property,  or  a  letter  of  attorney  for  the  conveyance  there- 
of, which  deed  or  letter  of  attorney  is  by  law  authorized  to  be 
registered,  shall  be  proved  or  acknowledged  in  foreign  parts  before 
any  ambassador,  public  minister,  consul  or  commercial  agent  of 
the  United  States,  and  a  certificate  of  such  ambassador,  public 
minister,  consul  or  commercial  agent  shall  be  thereunto  annexed 
under  his  official  seal,  declaring  such  probate  or  acknowledgment, 
or  when  any  feme  covert,  party  to  such  deed  or  letter  of  attorney, 
shall  be  privately  examined  before  such  ambassador,  public  minis- 
ter, consul  or  commercial  agent  and  a  certificate  of  such  examina- 
tion shall  be  annexed  as  aforesaid,  such  probate,  acknowledgment 
and  examination  being  produced  before  the  court  of  pleas  and 
quarter  sessions  of  the  county,  wherein  the  land  or  other  property 
is  situated,  may  be  ordered  by  said  court  to  be  registered,  together 
with  the  said  deed  or  letter  of  attorney,  and  the  instrument  so  reg- 
istered shall  have  the  same  validity  as  if  the  probate,  acknowledg- 
ment and  examination  had  been  had  in  open  court. 

8.  Whenever  it  shall  be  suggested  to  the  court  of  pleas  and 
quarter  sessions  of  any  county,  that  a  deed  for  the  conveyance  of 
land  or  other  property  in  such  county  has  been   made    in   foreign 

6.  1715,  c.  7,  s.  3.— ISIO,  c.  791,  s  2  and  3. 

7.  1835,  c  13,  s.  2. 

8.  1835,  c.  13,  s.  3. 


Chap.  XXXVII.]  deeds  and  conveyances.  227 

parts,  it  shall  be  lawful  for  such  court  to  issue  a  commission,  re- 
turnable at  some  subsequent  term  thereof,  to  a  commissioner  or 
commissioners,  authorizing  him  or  them  or  any  number  of  them 
the  court  may  designate,  to  take  the  acknowledgment  of  the  party 
or  parties  thereto  or  the  examination  of  any  of  the  subscribing 
witnesses  thereto,  and  if  any  of  the  parties  shall  be  a  feme  covert^ 
to  take  also  the  private  examination  of  such  feme  covert.,  and  the  pro- 
ceedings of  the  said  commissioner  or  commissioners,  so  authorized, 
being  returned,  the  court  may  proceed  to  adjudge  that  said  deed  ■ 
or  letter  of  attorney  is  duly  acknowledged  or  proved  and  the  said 
examination  is  in  due  form  ;  and  upon  such  adjudication,  the  deed 
or  letter  of  attorney  with  the  proceedings  so  had  shall  be  registered, 
and  the  same,  so  registered,  shall  have  the  same  effect  as  though 
all  the  said  proceedings  had  been  had  in  open  court. 

9.  All  conveyances  in  writing  and  sealed  by  husband  and  wife  How  deeds  ex- 
for  any  lands,  and  by  them  personally  acknowledged  before  one  of  ^and^anJ wife' 
the  judges  of  the  supreme  or  superior  courts,   or  in  the  court  of  shall  be  proved 
the  county  where  the  land  lieth,  the  wife  being  first  privily  exam- "dged  and  re<T- 
ined  before  such  judge,  or  some   member  of  the  county  court,  ^f^^*^- 
appointed  by  the  said  court  for  that  purpose,  whether  she  doth  vol- vately  exan^"^^" 
untarily  assent  thereto,  and  registered  according  to  the  laws  of  this  i^^ed. 
State,  shall  be  as  valid  in  law  to  convey  all   the  estate  and  title, 

which  such  wife  may  or  shall  have  in  any  lands,  tenements  and 
hereditaments  so  conveyed,  whether  in  fee  simple,  right  of  dower 
or  other  estate,  as  if  done  by  fine  and  recovery,  or  any  other 
ways  and  means  whatsoever. 

10.  Provided  nevertheless^  that  where  any  such    conveyance  as  Provision  when 
aforesaid  shall  be  acknowledged  by  the  husband,  or  proved  by  the  ^^^  ^^^"^  ^^  ^1?*^ 

-*■  *  or  rGsicl6iit  01 

oath  of  one  or  more  witnesses,  before  a  judge  as  aforesaid  or  county  another  county, 
court  where  the  land  lieth,  and  it  shall  be  represented  to  the  judge, 
or  county  court  aforesaid,  that  the  wife  is  a  resident  of  any  other 
county,  or  so  aged  or  infirm  that  she  cannot  travel  to  the  said 
judge  or  county  court  to  make  such  acknowledgment  as  aforesaid, 
it  shall  and  may  be  lawful  for  the  said  judge  or  county  court  by  his 
or  their  order  to  direct  the  clerk  of  the  county  court,  where  such 
land  lieth,  to  issue  a  commission  to  two  or  more  commissioners 
for  receiving  the  acknowledgment  of  any  deed  of  such /erne  covert 
for  passing  her  estate  in  any  lands,  tenements  or  hereditaments, 
and  such  deed,  acknowledged  before  them,  after  they  have  exam- 
ined her  privily  and  apart  from  her  husband  touching  her  consent, 
and  certified  by  the  county  court,  to  which  the  commission  shall 
be  returnable,  shall,  by  order  of  the  county  court,  be  registered 
with  the  commisson  and  returns,  and  shall  be  as  effectual  as  if  per- 
sonally acknowledged  before  the  judge  or  county  court  by  such 
feme  covert. 

11.  The  several  clerks  of  the  courts  of  pleas  and  quarter  ses- Form  of  the 
sions,  shall  issue  the  said  commission  in  the  following  form,  viz  :    take  the^pr?va°e 

9.  1751,  c.  50,  s.  2. 

10.  1751,  c.  50,  s.  3. 

11.  1751,  C.  50,  s.  4. 


228  DEEDS  AND  CONVEYANCES.   [ChAP.  XXXVII. 

examination  of  State  of  North  Carolina, 

^  ferae  covert.  rp^  ^     ^     ^     ^     ^^^  ^^  greeting  : 

Whereas  F.  G.  hath  produced  a  deed  of  conveyance,  made  to 
him  from  H.  I.  and  K.  his  wife,  of  a  certain  tract  or  parcel  of 
land,  lying  and  being  in  the  county  of  in  our  State,  and 

procured  the  same  to  be  proved  or  acknowledged  by  the  said  H. 
I.  before  J.  K.  one  of  the  judges  of  our  supreme  or  superior 
court  (or  in  the  court  of  our  said  county  of  C,  as  the  case  may 
be)  and  it  being  represented  to  our  said  judge,  (or  to  our  said 
court)  that  K.  wife  of  the  said  H.  I.  is  not  an  inhabitant  of  our 
said  State,  or  is  so  aged  and  infirm  (here  as  the  case  may  be)  that 
she  cannot  travel  to  our  said  judge,  or  court  of  our  said  county  of 
to  be  privily  examined,  as  to  her  free  consent  in 
executing  the  said  conveyance,  know  ye  that  we,  in  confidence  of 
your  prudence  and  fideUty,  have  appointed  you  and  by  these  pre- 
sents do  give  unto  you  or  to  any  two  of  you,  full  power  and  au- 
thority to  take  the  private  examination  of  the  said  K.  wife  of  the 
said  H.  I.,  concerning  her  free  consent  in  her  executing  the  said 
conveyance,  and  therefore  we  command  you  or  any  two  of  you 
that,  at  such  certain  day  and  place  as  you  shall  think  fit,  you  go  to 
the  said  K.,  if  she  cannot  conveniently  come  to  you,  and,  privily 
and  apart  from  her  husband,  examine  her  the  said  K.  whether  she 
executed  the  said  conveyance  freely  and  of  her  own  accord,  with- 
out fear  or  compulsion  of  the  said  H.  I.  her  husband  ;  the  exami- 
nation being  distinctly  and  plainly  wrote  on  the  said  deed  or  on 
some  paper  annexed  thereto  :  and  when  you  shall  have  so  taken 
the  said  examination,  you  are  to  send  the  same,  closed  up  under 
the  seals  of  you  or  any  two  of  you,  together  with  this  writ,  unto 
our  said  court,  to  be  held  for  the  said  county,  at  on 

the  day  of  next  ensuing.     Witness  L.  M. 

clerk  of  our  said  court  at  the  day  of 

anno  dora.  L.  M.  cl.  c. 

Conveyance  \2.   All  conveyances,  which  may  be  made  by  any  person,  under 

of  attorney       a  power  of  attorney  from  any  /erne  covert  residing  without  the 
from  husband    State,  by  her  freely  executed  and  jointly  with  her  husband,  shall 
to  pass  lands,    be  held  good  and  valid,  to  all  intents  and  purposes,  to  pass  the 
estate  and  title,  which  such  feme  covert  may  have  in  such  lands, 
tenements  and  hereditaments   within  this  State,  as  are  mentioned 
or  included  within  such  power  of  attorney,  whether  in  fee  simple, 
right  of  dower,  or  otherwise. 
How  deeds  and      13.   When  any  conveyance  of  lands  in  this  State,  or  power  of 
Fomerfrom  '    attorney  for  the  conveyance  of  the  same,  shall  be  made  by  husband 
husband  and     and  wife  residing  in  any  of  the  United  States  other  than  this  State, 
of  this  smte°"  or  in  any  of  the  territories  of  the  United  States,  or  in  the  district 
but  in  the         of  Columbia,  and  by  them   personally  acknowledged  before  some 
may  be  proved  01^6  of  the  judges  of  the  court  of  supreme  jurisdiction  or  before 
and  registered,  some  one  of  the  judges  of  the  superior  courts  of  law  or  circuit  courts 
of  law  of  superior  jurisdiction,  within  said  state,  territory  or  dis- 
trict, or  where  the  wife  shall  personally  acknowledge  such  con- 

12.  1793,  c.  510. 

13.  1810,  c.  791,  s.  1.— 1S16,  c.  927.— 1S27,  c.  18.— 1822,  c.  1116. 


Chap.  XXXVIL]  deeds  and  conveyances.  229 

veyance,  before  two  or  more  commissioners  duly  authorized  to 
take  such  acknowledgment,  under  a  commission  issued  from  some 
court  of  record  in  said  state,  territory  or  district,  the  wife  being 
first  privily  examined  before  said  judge  or  commissioner,  whether 
she  doth  voluntarily  assent  thereto,  and  an  attestation  of  such  ac- 
knowledgment endorsed  upon  or  affixed  to  said  deed,  or  power  of 
attorney,  or  commission  by  the  said  judge  or  commissioners, 
and  the  certificate  of  the  governor  of  the  said  state,  or  territory, 
or  in  the  district  of  Columbia  of  the  secretary  of  state  of  the  Uni- 
ted States,  duly  authenticated  and  annexed  to  said  deed,  that  the 
judge  before  whom  such  acknowledgment  was  taken,  was  at  the 
time  of  taking  thereof  one  of  the  judges  of  the  courts  of  supreme 
or  superior  jurisdiction  in  said  state,  territory  or  district,  or  that 
the  court,  which  issued  such  commission,  is  a  court  of  record,  and 
the  person  signing  said  commission  is  clerk  of  the  said  court,  such 
deed  or  power  of  attorney  shall,  upon  being  exhibited  to  the  court 
of  pleas  and  quarter  sessions  of  the  county,  where  such  lands  he, 
or  one  of  the  judges  of  the  supreme  or  superior  courts,  be  order- 
ed to  be  registered  with  the  certificates  and  commission  endorsed 
thereon  or  annexed  thereto,  and,  when  so  registered,  shall  be  valid 
in  law  to  convey  all  the  estate  and  title,  which  such  feme  covert 
may  or  shall  have  in  any  such  lands,  tenements  or  hereditaments 
so  conveyed  or  authorized  to  be  conveyed,  and  shall  be  received 
in  evidence  in  courts  of  law  and  equity  without  further  proof. 

14.  Any  deed  for  the  conveyance  of  lands  in  this  State,  or  any  How  when 
power  of  attorney  to  convey  lands  in  this  State,  made  by  husband  Jj^g  ^"si^fj^ii^ 
and  wife,  who  reside  in  foreign  parts  or  without  the  limits  of  the  foreign  parts. 
United  States,  which  shall  be  personally  acknowledged  before  the 

mayor  or  other  chief  magistrate  of  any  city,  town  or  corporation, 
the  wife  being  first  privily  examined  by  such  mayor  or  chief  mag- 
istrate, whether  she  doth  voluntarily  assent  thereto,  and  an  attes- 
tation thereof  endorsed  thereon  or  affixed  thereto,  shall  upon  be- 
ing exhibited  to  the  court  of  pleas  and  quarter  sessions  of  the 
county  where  such  land  lies,  or  one  of  the  judges  of  the  supreme 
court  or  the  superior  courts  of  this  State,  be  ordered  to  be  regis- 
tered, and  shall  be  registered  in  the  same  manner  as  if  such  deed 
or  power  had  been  proved  or  acknowledged  in  open  court  of  the 
county  where  the  lands  he,  and  shall  be  valid  in  law  to  pass  the 
estate  and  title  of  the  wife  to  all  such  lands,  tenements  or  heredi- 
taments so  conveyed  or  to  be  conveyed,  and  when  registered  as 
aforesaid  shall  be  received  in  evidence  without  further  proof. 

15.  When  any  power  of  attorney,    authorizing  the  conveyance  powers  of  at- 
of  lands,  is  or  shall  be  acknowledged  by  the  person  who  has  exe-  tomey  for  the 
cuted  the  same,  or  proved  by  one  or  more  witnesses  on  oath  be- how  to  be 
fore  any  iudge  of  the  supreme  or  superior  courts  in  this  State  or  P^'o/ed,  &c. 

c      ^  1  •  c     ^  J.  \.         and  registered. 

m  any  court  ot  pleas  and  quarter  sessions  ol  the  county,  where 
the  land  lies  or  the  power  was  executed,  such  power  of  attorney 
30  proved  or  acknowledged  may  be  registered  by  the  pubhc  reg- 
ister of  the  county  where  the  land  lies,  at  any  time  within  twelve 
months  after  the  date  of  said  deed. 

14.  1810,  c.  791,5.  2. 

15.  1798,  C.  514,  8.  1. 


280 


DEEDS    AND  CONVEYANCES.   [ChAP.  XXXVII. 


Other  powers 
of  attorney, 
how  to  be 
proved  and 
registered. 


Gifts  of  slaves 
must  be  in 
writing,  attest- 
ed and  regis- 
tered. 


Proviso  as  to 

advancements 
to  children. 


Deeds  of  gift 
to  be  proved 
and  registered. 


All  sales  of 
slaves  must  be 
in  writing,  at- 
tested and 
registered,  ex- 
cept bona  fide 
sales  accom- 
panied with  a 
transfer  of  pos- 
session. 


1 6.  Every  power  of  attorney,  other  than  those  specially  pro- 
vided for  in  this  act,  the  execution  of  which  is  or  shall  be  duly 
certified  under  the  seal  of  the  notary  or  tabellion  public,  or  the  seal 
of  any  mayor  or  presiding  magistrate  of  any  city,  town  or  corpora- 
tion, or  clerk  of  a  court,  or  duly  proved  in  open  court  by  the  oath 
of  a  subscribing  witness,  such  power  of  attorney,  so  certified  and 
attested,  upon  being  exhibited  to  any  of  the  judges  of  the  supreme 
or  superior  courts,  or  in  any  court  of  pleas  and  quarter  sessions, 
shall  be  ordered  to  be  recorded,  and  thereupon  the  register  shall 
register  the  same  :  Provided  nevertheless^  that  nothing  herein  con- 
tained shall  extend  or  be  construed  to  extend  to  the  admission  of 
any  power  of  attorney  to  registry,  which  is  signed  or  executed  by 
a  feme  covert,  unless  she  has  acknowledged,  in  the  manner  required 
by  law  for  her  passing  lands,  separately  and  apart  from  her  hus- 
band, that  she  signed  the  said  power  of  attorney  freely,  voluntarily, 
and  without  fear  or  the  compulsion  of  her  husband,  or  any  other 
person  whatever. 

17.  No  gift  hereafter  to  be  made  of  any  slave  shall  be  good  or 
available  either  in  law  or  equity,  unless  the  same  shall  be  made  in 
writing,  signed  by  the  donor  and  attested  by  at  least  one  credible 
witness  subscribing  ;  neither  shall  such  gift  be  valid  unless  the 
writing  by  which  the  title,  by  which  any  slave  is  transferred,  shall 
be  proved  or  acknowledged,  as  conveyances  of  land,  and  register- 
ed in  the  office  of  the  public  register  of  the  county  where  the  donee 
resides,  within  one  year  after  the  execution  thereof,  if  the  donee 
be  in  actual  possession  of  the  slave  so  given  and  transferred  ;  but 
if,  under  any  special  agreement  made  at  the  time  of  the  gift,  the 
donor  shall  remain  in  possession  of  the  slave  so  given,  then  the 
writing  transferring  or  conveying  the  same  slave  shall  be  proved  or 
acknowledged  as  aforesaid,  and  registered  within  the  same  time,  in 
the  county  where  the  donor  resides  :  Provided,  that  when  any 
person  shall  have  put  into  the  actual  possession  of  his  or  her  child 
or  children  any  slave,  and  the  said  slave  shall  remain  in  the  pos- 
session of  such  child  or  children  at  the  time  of  the  death  of  such 
person,  he  or  she  dying  intestate,  such  slave  shall  be  considered 
as  an  advancement  to  such  child  or  children,  and  be  regulated  by 
the  laws  now  in  force  relating  to  advancements  made  to  children 
by  a  parent  in  his  hfe  time. 

18.  All  deeds  of  gift  of  any  estate  of  whatever  nature  shall, 
within  twelve  months  after  the  making  thereof,  be  proved  in  due 
form  and  recorded,  or  otherwise  shall  be  void  and  of  no  force 
whatever. 

19.  All  sales  of  slaves  shall  be  in  writing,  attested  by  at  least 
one  credible  witness,  or  otherwise  shall  not  be  deemed  valid  ;  and 
all  bills  of  sale  of  slaves  shall,  within  twelve  months  after  the  mak- 
ing thereof,  be  proved  in  due  form  and  recorded,  and  all  bills  of 
sale  and  deeds  of  gift  not  authenticated  and  perpetuated  in  manner 

16.  1798,  c.  514,  s.  3  and  4. 

17.  1806,  c.  701,  s.  1  and  3. 

18.  1789,  c.  315,  s.  2. 

19.  1784,  C.  225,  s.  7.— 1789,  c.  315,  s.  2.— 1792,  c.  363,  s.  1. 


Chap.  XXXVIL]  deeds  and  conveyances.  231 

by  this  act  directed,  shall  be  void  and  of  no  force  whatever  :  Pro- 
vided, that  all  sales  of  slaves,  bona  fide  made  and  accompanied  with 
the  actual  dehvery  of  the  slave  or  slaves  to  the  purchaser,  and 
which  would  be  held  good  but  for  the  provisions  contained  in  this 
section,  shall  be  and  the  same  are  hereby  declared  good  and  valid 
without  any  bill  of  sale. 

20.  When  any  transfer  or  conveyance   of  any  slave  or  slaves  All  written 
shall  be  in  writing,  such  writing,  after  being  legally  proved,  shall  skves^must  be 
be  registered  in  the  county  where  the  purchaser  (he  being  in  actual  registered  in 
possession  of  the  slave  or  slaves  so  transferred  or  conveyed)  shall  ^herel'L^ur- 
reside  ;  but  if,  under  any  special  agreement  at  the  time  of  the  sale,  chaser  resides 
the  seller  shall  remain  in   possession  of  the  slave  or  slaves  sold,  ler  is  to  retdn 
then  the  writing,  transferring  or  conveying  the  said  slave  or  slaves,  possession,  &c. 
shall  be  registered  in  the  county  where  the  vendor  lives. 

21.  On  all  trials  at  law  where  a  written  transfer  or  conveyance  All  written 
of  a  slave  or  slaves,  by  way  of  gift,  sale  or  otherwise,  shall  be  in-  siaves^to  be 
troduced  to  support  the  title  of  either  party,  the  due  and  fair  exe-  proved  on  any 
cution  of  such  writing  shall  be  proved  by  a  witness,   subscribing  subscribing 
and  attesting  the  execution  of  such  writing,  but  if  such  witness  shall  witnesses  if  to 
be  dead  or  removed  out  of  the    State,  then  the  probate  and  regis- 
tration of  such  writing  may  be  given  in  evidence. 

22.  Every  hmitation  by  deed  or  writing  of  a  slave  or  slaves,  Certaia  limit- 
which  limitation,  if  contained  in  a  last  will  and  testament,  would  ^1^°^^  ^^  ^^, 
be  good  and  effectual  as  an  executory  devise  or  bequest,  shall  be  to  be  valid. 
and  is  hereby  declared  to  be  a  good  and  effectual  limitation  in  re- 
mainder of  such  slave  or  slaves,  and  any  limitation  made  or  reserv- 
ed to  the  grantor,  vendor  or  donor,  in  any  such  deed  or  writing  of 

a  slave  or  slaves,  shall  be  good  and  effectual  in  law  :  Provided  such 
hmitation,  had  it  been  made  to  another  person,  would  be  good  and 
effectual  according  to  the  preceding  clause  :  Provided,  also,  that 
all  such  deeds  or  writing  shall  be  provec^,  witnessed  and  registered 
as  other  written  conveyances  of  slaves  are  or  may  be  by  law  re- 
quired to  be  witnessed,  proved  and  registered. 

23.  No  mortgage,  nor  deed   or  conveyance  in  trust,  for  any  No  mortgage  or 
estate,  whether  real  or  personal,  shall  be  good  and  available  in  law  ^^^^  ^"  ^™®^ 

,.  ^,  r  111  •!•  good  against 

against  creditors  or  purchasers  lor  a  valuable  consideration,  unless  creditors  unless 
the  same  shall  have  been  proved   and   registered,  in  the  manner  wuhiTsix 
already  prescribed  by  law  in  the  case  of  conveyances  other  than  months, 
mortgages,  within  six  months  after  the  execution  of  such  mortgage, 
or  deed   or  conveyance  in  trust ;    but  all  mortgages,  deeds  and 
conveyances  in  trust,  not  so  proved  and  registered  within  the  time 
aforesaid,  shah  be  held  and  taken  as  against  such  creditors  or  pur- 
chasers as  utterly  nuU  and  void. 

24.  No  deed  of  trust  or  mortgage,  for  real  or  personal  estate.  Mortgage  or 
shall  be  valid  at  law  to  pass  any  property,  as   against  creditors  or  ^H'^  "gainst 
purchasers  for  a  valuable  consideration,  from  the  donor,  bargainor  creditors,  &c. 
or  mortgagor,  but  from  the  registration  of  such  deed  of  trust  or  ^"|^  oFnil^^ 

20.  1792,  c.  363,  s.  2. 

SI.  1792,  c.  363,  s.  3.— 1806,  c.  701,  s.  2. 

22.  1823,  c.  1211. 

23.  1820,  c.  1037. 

24.  1329,  c.  20,  s.  I. 


232  DEEDS  AND  CONVEYANCES.  [ChAP,  XXXVIl, 

mortgage  in  the  county  where  the  land  Heth,  or,  in  case  of  chattels, 

where  the  donor,  bargainor  or  mortgagor  resides,  or  in  case  the 

donor,  bargainor  or  mortgagor  shall  reside  out  of  the  State,  then 

in  the  county  where  the  said  chattels  or  some  of  them  are  situate. 

Clerks  of  the        25.   The  clerks  of  the  several  courts  of  pleas  and  quarter  ses- 

authorized^o    sions,  by  themselves  or  their  deputies,  shall  have  authority  in  their 

take  probate  of  respective  counties  to  take  the   probate   or  acknowledgment  of 

mortffa?es  and    j       i       r  ^       ^  ^  ^  ^-  ■  r  u 

deeds  in  trust,   deeds  01  trust  or.  mortgages,  at   any  time,  m  as   lull  a  manner  as 

their  respective  courts  can  or  may  do. 
Register  to  en  26.  The  register  shall  endorse  on  each  deed  of  trust  or  mort- 
m(m^affe*^&c  §^§®  ^^®  ^^7  °"  which  it  is  presented  and  delivered  to  liim  for 
the  dliv  he  re-  registration,  and  such  endorsement,  so  made,  shall  be  entered  on 
resisfe"in\he°  ^^^^  register's  books  and  form  a  part  of  the  registration,  and  he 
order  of  deliv-  shall  immediately  thereafter  register  the  same,  in  the  order  of  time 
^'^"  in  which  it  was  presented  and  delivered  to  him  ;  and  any  register, 

not  complying  with  the  provisions  and  requisitions  of  this  section, 
shall   be  liable  in  an  action  on  the  case  to  the  party  injured,  and 
also  to  be  indicted  in  the   superior  court,  and,  upon  conviction, 
fined  at  the  discretion  of  the  court. 
What  remedy        27.   In  case  more  than  one  mortgage  shall  happen  to  be  made 
g-atee^sh^r     ^^^^  be  in  forcc,  at  one  time,  of  the  same  lands  and  tenements, 
have  when       goods  and  chattels,  the  several  mortgagees,  which  have  not  regis- 
thaifone"mort-  tered  their  mortgages,   their  heirs,  executors,  administrators  or 
gage  in  force  at  assigns,  shall  have  power  to  redeem  any  mortgage  or  mortgages 
■  registered,  upon  paying  the  principal  debt,  interest  and   costs  of 
suit  to  the  prior  mortgagee  or  mortgagees,  their  heirs,  executors, 
administrators  or  assigns  ;  and  as  a  punishment  for  such  intended 
fraud  or  covin,  every  person  or  persons,  which  shall  mortgage  the 
same  lands,  tenements,  goods  or  chattels  a  second  time,  without 
notice  to  the  subsequent  mortgagee,  a  former  mortgage   being  in 
force  and  not  discharged,  shall  have  no  power  or  liberty  of  redemp- 
tion in  equity  or  otherwise. 
Where  an  ac-        28.   Where   any  action   shall  be  brought  on  any  bond  for  the 
loTecoTCTmon- P^7™^"^  of  money,  secured  by  a  mortgage,  or  performance  of  the 
ey  secured  by    covenants   therein   contained,  or  where  any  action  of  ejectment 
fortfe  mort-     ^^^^^  ^^  brought,  in  any  of  the  superior  courts  of  law  or  courts  of 
gaged  property,  pleas  and  quarter  sessions  in  this  State,  by  any  mortgagee  or  mort- 
mav^be'dis^-'^'    g^g^es,  his,  her  or  their  heirs,  executors,  administrators  or  assigns, 
charged  bv       for  the  recovery  of  the  possession  of  any  mortgaged  lands,  tene- 
money'lue  on   "lents  or  hereditaments,  and  no  suit  shall  be  then  depending  in  any 
the  mortgage    of  the  courts  of  equity  in  this    State  touching  the  foreclosing  or 
redeeming  such  mortgaged  lands,  tenements  or  hereditaments,  and 
who  shall  appear  and  become  defendant  or  defendants  in  such 
action  shall  at  any  time,  pending  such  action,  pay  unto  such  mort- 
gagee or  mortgagees,  or  in  case  of  his,  her  or  their  refusal,  shall 
bring  into  court,  where  such  action  shall   be   depending,  all  the 
principal  moneys  and  interest  due  on  such  mortgage,  and  also  all 
such  costs  as  have  been  expended  in  any  suit  or  suits  at  law  or 

25.  1829,  c.  20,  s  2. 

26.  1829,  c.  20,  s.  3  and  4. 

27.  1715,  c.  7,  s.  8.  > 
23  1789,  C.  312. 


into  court. 


Chap.  XXXVIL]  deeds  and  conveyances.  233 

equity  upon  such  mortgage,  such  money  for  principal,  interest  and 
costs  to  be  ascertained  and  computed  by  the  court,  where  such 
action  is  or  shall  be  depending,  or  by  the  proper  officer  by  such 
court  to  be  appointed  for  that  purpose,  the  moneys  so  paid  to  such 
mortgagee  or  mortgagees,  or  brought  into  such  court,  shall  be 
deemed  and  taken  to  be  in  full  satisfaction  and  discharge  of  such 
mortgage  ;  and  the  court  shall  and  may  discharge  every  such  mort- 
gagor or  defendant  of  and  from  the  same  accordingly,  and  shall 
and  may,  by  rule  or  rules  of  the  same  court,  compel  such  mort- 
gagee or  mortgagees,  at  the  costs  and  charges  of  such  mortgagor 
or  mortgagors,  to  assign,  surrender  or  reconvey  such  mortgaged 
lands,  tenements  and  hereditaments,  and  such  estate  and  interest 
as  such  mortgagee  or  mortgagees  have  or  hath  therein,  and  dehver 
up  all  deeds,  evidences  and  writings  in  his,  her  or  their  custody, 
relating  to  the  title  of  such  mortgaged  lands,  tenements  and  heredi- 
taments, unto  such  mortgagor  or  mortgagors,  who  shall  have  paid 
or  brought  such  moneys  into  court,  his,  her  or  their  heirs,  execu- 
tors or  administrators,  or  to  such  other  person  or  persons  as  he, 
she  or  they  shall  for  that  purpose  nominate  or  appoint.  Provided  Proviso  where 
always^  that  any  thing  herein  contained  shall  not  extend  to  any  case,  denies  the  right 
where  the  person  or  persons,  against  whom  the  redemption  is  or  of  redemption, 
shall  be  prayed,  shall  by  writing  under  his,  her  or  their  hands,  or 
the  hands  of  his,  her  or  their  attorney,  agent  or  solicitor,  to  be 
dehvered,  before  the  money  shall  be  brought  into  such  court  at 
law,  to  the  attorney  or  solicitor  for  the  other  side,  insist,  either 
that  the  party  praying  a  redemption  has  not  a  right  to  redeem,  or 
that  the  premises  are  chargeable  with  other  or  different  principal 
sums,  than  what  appear  on  the  face  of  the  mortgage,  or  shall  be 
admitted  on  the  other  side,  nor  to  any  case,  where  the  right  of 
redemption  to  the  mortgaged  lands  and  premises  in  question  in 
any  case  or  suit  shall  be  controverted  or  questioned  by  or  between 
different  defendants  in  the  same  cause  or  suit,  nor  shall  be  any 
prejudice  to  any  subsequent  mortgagee  or  mortgagees  or  subse- 
quent incumbrancer. 

29.  All   marriage    settlements    and   other   marriage  contracts.  Marriage  set- 
whereby  any  money  or  other  estate  shall  be  secured  to  the  wife  m^^^  and  reg- 
or  husband,  shall  be   proved,  in  the  same  manner  as  other  deeds,  istered. 
within  six  months  after  the  making  thereof,  and  registered  w^ithin 

one  month  thereafter,  and  all  marriage  settlements  and  other  mar- 
riage contracts,  not  proved  and  registered  according  to  the 
directions  of  this  act,  shall  be  void  against  creditors. 

30.  No  marriage   settlement,  or  other  marriage   contract,  shall  ^^^^  marriage 
be  good  against  creditors,  where  a  greater  value  is  secured   to  the  shall  be  good 
intended  wife  and  children  of  the  marriage,  or  either  of  them,  than  against  credi- 
the  portion   actually  received  with  the  wife  in  marriage  and  such       ' 

estate  as  the  husband  at  the  time  of  his  marriage  shall  be  possessed 
of,  after  deducting  the  just  debts  by  him  then  due  and  owing,  and 
in  case  of  any  suit  upon  any  such  marriage  contract,  where  any 
creditor  or  creditors  shall  be  a  party,  the  burden  of  the  proof  shall 

29.  1785,  c.  238,  s.  1.  ifV/ 

30.  irse,  C.  238,  S.  2. 

VOL.  I.  30 


234  DEEDS  AND  CONVEYANCES.  [ChAP.  XXXVII. 

lie  upon  the  person  or  persons  claiming  under  such  marriage  con-    ' 
tract :   Provided  always,  that  if  any  legacy  or  legacies  shall  be 
given  to  the  wife  in  general  words,  and  not  in  trust,  or  a  distribu- 
tive   share   or   shares  of  any  intestate's  estate  shall  fall  to    her 
during  her  coverture,  such  legacies  and  distributive  shares  (in  case 
the  estate  of  the  husband  and  wife  shall  not  at  the  time  of  the 
marriage  be  of  sufficient  value  to  make  good  the  marriage  contract) 
shall  be  held,  deemed   and  taken  as  part  of  the  portion  received 
with  the  wife,  and  shall  be  secured  to  those  claiming  under   such 
marriage  contract. 
Infant  trustees       31.  It  shall  and  may  be  lawful  for  any  person  under  the  age  of 
lands^°  ^""^^^^  twentyone  years,   having  estates  in  lands,   tenements  or  heredita- 
ments,  only  in  trust  for  others,  or  by  way  of  mortgage,  by  the 
direction  of  the  court  of  equity  of  the  county,  in  which  such  lands, 
tenements  or  hereditaments  are  situate,  signified  by  an  order  made 
upon  hearing  all  parties  concerned,  on  the  petition  of  the  person 
or  persons  for  whom  such  infant  or  infants  shall  be   seized   or 
possessed  in  trust,  or  of  the  mortgagor  or  mortgagors,  or  guardian 
or    guardians    of  such    infant   or    infants,  or   person  or    persons 
entitled  to  the   moneys,  secured  by  or  upon  any  lands,  tenements 
or  hereditaments,   whereof  any  infant  or  infants  are  or  shall  be 
seized  or  possessed  by  way  of  mortgage,    or  of  the  person    or 
persons  entitled  to  the  redemption  thereof,  to   convey  and   assure 
any  such  lands,  tenements  or  hereditaments,  in  such  manner  as  the 
said  court  of  equity  shall,  by  such  order  so  to  be  obtained,  direct, 
to    any    other   person    or   persons  ;    and    such    conveyance    or 
assurance,  so   to   be  had  and  made  as  aforesaid,  shall  be  as  good 
and  effectual  in  law  to  all  intents  and   purposes  whatsoever,   as  if 
the  said  infant  or  infants  were,  at  the  time  of  making  such  con- 
veyance or  assurance,   of  the  full  age   of  one  and  twenty  years  ; 
and  all    and  every  such  infant  or  infants,  being  only  trustee  or 
trustees,  mortgagee  or  mortgagees  as  aforesaid,  shall  and  may  be 
compelled  by  such  order,  so  as  aforesaid  to  be  obtained,  to  make 
such   conveyance    or    conveyances,    assurance    or   assurances  as 
aforesaid,  in  like  manner  as  trustees  or  mortgagees  of  full  age  are 
compellable  to  convey  or  assign  their  trust  estates  or  mortgages. 
Errors  in  the         32.   Every  person  who  discovers  that  there  is   an  error  in  the 
registr^ion^of^  j-ggigt^atJon  Qf  ^jg  grant,  mesne   conveyance,  bill  of  sale  or  other 
to  be  corrected,  instrument  of  writing,  shall  be  at  liberty  to  prefer  a  petition  to  the 
^-  county  court,  in  the  same  manner  as  is  directed  for  petitioners  to 

correct  errors  in  grants  or  patents,  and,  on  hearing  the  same,  if  it 
appears  to  the  satisfaction  of  the  court  that  errors  have  been  com- 
mitted, they  are  hereby  directed  and  required  to  order  the  register 
of  the  county  to  correct  such  errors,  and  make  the  records  by  him 
kept  conformable  to  the  grant,  mesne  conveyance,  bill  of  sale  or 
other  instrument  of  writing,  in  which  it  appears  such  mistake  has 
been  so  made  :  Provided,  that  a  majority  of  the  acting  justices  of 
said  court  shall  be  present  on  the  hearing  of  said  petition,  and  that 

31.  1821,  c.  1116,  8.  I  and  2. 

32.  1790,  c.  326,  s.  2,  3  and  4. 


Chap.  XXXVII.]  deeds  and  conveyances.  235 

such  petitioner  shall  prove  to  the  said  court  that  he  has  notified 
every  person  having  lands  adjoining  those  mentioned  in  the  peti- 
tion, thirty  days  previous  to  preferring  the  same,  and  that  he  has 
notified  every  person  who  claims  title  to  the  land  described  in  his 
petition  :  And  provided  also,  that  any  person  who  may  be  dissatis- 
fied with  the  judgment  of  the  county  court  on  such  petition,  shall 
be  at  liberty  to  appeal  to  the  superior  court  of  the  county,  as  in 
other  cases,  and  no  such  petition  shall  be  set  for  hearing  at  the 
first  term  :  Provif/ec? /itrf/ier,  that  in  all  such  cases  the  same  notice 
shall  be  given  by  the  petitioner  to  the  grantor  in  such  deed,  mesne 
conveyance,  bill  of  sale  or  other  instrument  of  writing,  and  the 
clerk  shall  receive  fifty  cents  for  his  services  on  each  petition  and 
no  more. 

33.   All  grants  of  land  in  this  State,  all  deeds  of  mesne  convey- Further  time 
ance,  powers  of  attorney,  under  which  any  lands,  tenements  or  regirterinff' 
hereditaments  have  been  or  may  be  conveyed,  all  other  powers  of  deeds,  &c. 
attorney  which  are  required  to  be  proved  and  registered  by  any  act 
of  the  General  Assembly,  all  bills  of  sale,  deeds  of  gift  already 
proved,  or  which  may  hereafter  be  proved,  shall  and  may,  within 
three  years  after  the  passage  of  this  act,  be  admitted  to  registration, 
under  the  same  rules,  regulations  and  restrictions  as  heretofore  ap- 
pointed   by  law,   and  said  grants,    deeds,   mesne    conveyances, 
powers  of  attorney,  bills  of  sale  and  deeds  of  gift,  shall  be  as  good 
and  valid  as  if  they  had  been  proved  and  registered  within  the  time 
heretofore  allowed  :  Provided,  that  nothing  herein  contained  shall 
be  construed  to  extend  to  mortgages  or  to  conveyances  in  trust, 

33.   1835,  c.  9. 


Note. — References  to  Adjudged  Cases. 

Sect.  8.  Lucas  vs.  Cobbs,  1  Dev.  and  Bat.  228. 

Sect.  9.  Harrel  rs.  Elliot,  Tayl.  139.  Hunter  jjs.  Bryan,  2  Murph.  178.  Robeson 
vs.  Barfield,  ib.  390.  Burgess  vs.  Wilson,  2  Dev.  306.  Barfield  vs.  Combs,  4  Dev.  514, 
Fenner  vs.  Jasper.  1  Dev.  and  Bat.  34. 

Sect.  10.  Sutton  vs.  Sutton,  1  Dev.  and  Bat.  582. 

Sect.  17.  Ball  vs.  Brooks,  3  Murph.  133.  Smith  vs.  Yates,  1  Dev.  302.  Palmer  vs. 
Faucet,  2  Dev.  240.  Jones  vs.  Sasser,  3  Dev.  378.  Stallings  vs.  Stallings,  1  Dev.  Eq. 
298.  Vines  vs.  Brownrigg,  4  Dev.  265.  Andrev^'s  vs.  Shaw,  ib.  270.  Harris  vs.  Yar- 
borough.  ib.  166.  Jones  vs.  Loper,  1  Dev.  and  Bat.  452.  Bennet  vs.  Flowrers,  ib.  467. 
Hamlin  vs.  Alston,  ib.  479.  Alston  vs.  Hamlin,  2  Dev.  and  Bat.  Thompson  vs. 
Todd,  ib.  ^ 

Sect.  19.  Knight  rs.  Thomas,  1  Hay.  289.  Hancock  w.  Hovey,  Tayl.  104.  Cutler 
«s.  Speller,  2  Hay,  61.  Latham  ?)s.  Outen,  ib.  66.  Bateman  t's.  Rateman,  2  Murph. 
97.  Gotten  BS.  Powell,  2  Car.  Rep.  431.  McRea  ys.  Houston,  3  Murph.  429.  Rhodes 
us.  Holmes,  2  Hawks,  193.  Mushat  vs.  Brevard,  4  Dev.  73.  Belljjs.  Culpeper,  2 
Dev.  and  Bat. 

Sect.  20.  Palmer  vs.  Popleston,  1  Hawks,  307.  Carleton  vs.  Bloodwoth,  1  Murph. 
424. 

Sect.  23.  Moore  vs.  Collins,  3  Dev.  126.  Smith  vs.  Washington,  1  Dev.  Eq.  318. 
Moore  vs.  Collins,  4  Dev.  384.  Walton  vs.  Stallings,  4  Dev.  56.  Gregory  vs.  Perkins, 
ib.  50. 

Sect.  24.  McKinnon  vs.  McLean,  2  Dev.  and  Bat. 

Sect.  27.  Pike  vs.  Armstead,  1  Dev.  Eq.  110. 

Sect.  28.  Devereux  vs.  Marsorotti,  3  Hawks,  338. 

Sect.  32.  Jones  vs.  Physioc,  1  Dev.  and  Bat.  173. 


2m 


DESCENTS.  [Chap.  XXXVIII. 


CHAPTER  38. 


DESCENTS 


AN  ACT  TO  REGULATE  DESCENTS. 


Section 
1.  Rules  of  descent. 

Rule  1.  Lineal  descent. 

Rule  2.  Females  to  inherit  equally 
with  males,  and  younger  with  older 
children  —  Proviso  as  to  a  child 
advanced. 

Rule  3.  Lineal  descendants  to  rep- 
resent their  ancestors. 

Rule  4  Collateral  descent  where  the 
inheritance  has  been  transmitted 
from  an  ancestor. 

Rule  5.  Collateral  descent  when  the 
inheritance  has  not  been  transmitted 
from  an  ancestor. 

Rule  6.  Collateral  relations   of   the 


Section 

half  blood  to  inherit  equally  with 
those  of  the  whole  blood — Proviso, 
where  a  parent  shall  take. 

Rule  7.  No  person  to  take  unless  he 
be  born  at  the  death  of  the  person 
last  seized  or  within  ten  months  af- 
terwards. 

Rule  8.  In  what  case  the  widow 
shall  take  as  heir. 

Rule  9.  Alien  heirs  not  to  prevent 
other  relations,  being  citizens,  from 
inheriting. 

Rule  10.  Illegitimate  children  may 
inherit  from  their  mother  and  from 
each  other. 


Rules  of  de- 
scent. 

Lineal  descent 


Females  to  in- 
herit equally 
with  males,  and 
younger  with 
older  children. 
Proviso  as  to  a 
child  advanced. 


Lineal  de- 
scendants to 
represent  their 
ancestor. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  the  following  rules  be  and  hereby  are  established  for  regulat- 
ing the  descent  of  inheritances. 

Rule  1.  Inheritances  shall  lineally  descend  to  the  issue  of  the 
person,  who  died  last  actually  or  legally  seized,  forever,  but  shall 
not  lineally  ascend,  except  as  is  hereafter  provided  for. 

Rule  2.  Females  shall  inherit  equally  with  males,  and  younger 
equally  with  older  children  :  Provided,  that  no  child,  who  shall 
have  lands  settled  on  him  or  her  by  his  or  her  deceased  parent  in 
fee  simple,  equal  to  the  share,  which  shall  descend  to  the  other 
children,  shall  be  entitled  to  claim  any  further  share  of  the  real 
estate  of  such  parent  by  descent,  and  in  case  any  child  shall  have 
lands  settled  on  him  or  her  by  his  or  her  deceased  parent,  not 
equal  to  the  share  which  shall  descend  to  such  other  children,  then 
so  much  of  the  lands  or  other  real  estate  of  the  deceased  shall 
descend  to  such  child,  so  provided  for,  as  will  make  the  estates  of 
all  the  children  entitled  to  the  inheritance  as  nearly  equal  as  can 
be  estimated,  and  each  and  every  of  the  children  so  inheriting  shall 
hold  and  enjoy  in  the  land  so  descending  such  estate  as  the  said 
deceased  had  and  held  in  the  same  at  the    time  of  his    decease. 

Rule  3.  The  lineal  descendants  of  any  person  deceased  shall 
represent  their  ancestor  and  stand  in  the  same  place  as  the  person 
himself  would  have  done  had  he  been  living. 


Rule  1.  1808,  c.  739. 

2.  1808,  c.  739.-1734,  c.  204,  S.  2. 

3.  1808,  c.  739. 


Chap.  XXXVIIL]         descents.  237 

Rule  4.   On  failure  of  lineal  descendants,  and  where  the  inher-  Collateral  de- 
itance  has  been  transmitted  by   descent   from  an   ancestor  or   has  thelnheritence 
been  derived  by  gift,  devise  or    settlement   from    an    ancestor,  to  has  been 
whom  the  person  thus  advanced  would,  in  the  event  of  suchances-fjpj^'^^^^jjpgg. 
tor's  death,  have  been  the  heir  or  one  of  the  heirs,  the  inheritance  tor. 
shall  descend  to  the  next    collateral  relations   of  the  person    last 
seized,  who  were  of  the  blood  of  such  ancestor,  subject  to  the  two 
preceding  rules. 

RvLE  5.   On  failure  of  lineal  descendants,  and  where  the  inher- Collateral  de- 
itance  has  not  been  transmitted  by  descent  or  derived  as  aforesaid  ?^^"Jj^^^g®*^^ 
from  an  ancestor,   or   where,   if  so    transmitted    or    derived,  the  has  not  been 
blood  of  such  ancestor  is  extinct,  the  inheritance  shall  descend  to  f!?^!!fT^"^^^^ 

'  ,  irom  an  ances- 

the  next  collateral  relations  of  the  person  last  seized,  whether    of  tor. 
the  paternal  or  maternal  line,  subject  to  the  second  and  third  rules. 

Rule  6.   Collateral   relations   of  the   half  blood    shall    inherit  Collateral  re- 
equally  with  those  of  the  whole  blood,  and  the  degrees  of  relation-  i,^aif"hlo°oyto 
ship  shall    be   computed    according   to    the   rules  which   prevail  inherit  equally 
in  descents  at  common  law  :  Provided  always,  that  in  all    cases  Jp,e^J^|'°ig^ 
where  the  person  last  .seized  shall  have  left  no  issue,  nor  brother,  nor  blood, 
sister,  nor  the  issue  of  such,  the  inheritance  shall  vest,  for  li^^  a  parent Thalf 
only,  in  the  parents  of  the  intestate   or  in  either   of  them,  if  one  take. 
only  be  living,  and,  on  the  death  of  one  of  the  parents,  then  in  the 
survivor,  and  afterwards  be  transmitted  according  to  the  preceding 
rules. 

Rule  7.   No  inheritance  shall  descend  to  any  person,  as  heir  of  n-q  person  to 
the  person  last  seized,  unless   such  person   shall  be  in   life    at  the  ^^^^  unless  he 

J.  '  jL  nf  novn  {It  Trip 

death  of  the  person  last  seized,  or  shall  be  born  within  ten  months  death  of  the 
after  the  death  of  the  person  last  seized.  person  last 

^  S61Z6CI  or  Wltll- 

Rules.   Where  any  person  shall  die    seized  of  real   estate    of  in  ten  months 
inheritance  in  this  State,  leaving  no  person  who  can  claim  as    heir  afterwards. 
to  him,  but  leaving  a  widow,  the  widow  in  such  case  shall  be  taken  the  wldow^^^ 
and  held  to  be  the  heir  to  her  husband  and  inherit  his  estate  as  such,  shall  take  as 

Rule  9.  Where  any  person  shall  die    seized  of  real  estate    of  ^'^!'^'      . 
inheritance  in  this  State,  leaving  descendants  or  other  relations  cit-  to  prevent  other 
izens  of  the  United  States,  who  would    according    to  law  inherit,  relations  being 
were  all  other  nearer  descendants  or  relations    extinct,  but    who,  inheriting, 
according  to  the  now  existing  laws,  cannot  inherit  because    there 
may  be  others,  who  if  citizens  would  be  entitled  to  inherit,  but  being 
aliens  cannot  hold  lands  in  this  State,  whereby  such    estate    would 
escheat,  in  such   case  the  nearest    descendant   or    relation    of  the 
deceased,  being  a  citizen  of  the  United  States,  shall  inherit. 

Rule  10.  Where  any  woman  shall  die   intestate,  leaving  child- ^JJ^I^^.^™^^ 
ren,  commonly  called  illegitimate  or  natural,  born  out  of  wedlock,  inherit  from 
and  no  children  born  in  lawful  wedlock,  all  the  real  estate,  whereof  ^'j^^'^f™|^**^'^J"^jj 
she  shall  die  seized,  shall  descend  to  and  be  equally  divided  among  other. 
such  illegitimate  or  natural  born  children  and  their  representatives. 

Rule  4.  1308,  c.  739. 

5.  1808,  c.  739. 

6.  1808,  c.  739. 

7.  1823,  c.  1210. 

8.  1801,  c.  575,  s.  1. 

9.  1801,  c.  575,  s.  2. 

10.  1799,  c.  522. 


238  DIVORCE  AND  ALIMONY.   [ChAP.  XXXIX. 

in  the  same  manner  as  if  they  had  been  born  in  wedlock  ;  and  if 
any  such  illegitimate  or  natural  born  child  shall  die  intestate,  with- 
out leaving  any  child  or  children,  his  or  her  real  estate  shall  des- 
cend to  and  be  equally  divided  among  his  or  her  brothers  and  sis- 
ters, born  of  the  body  of  the  same    mother,  and  their  representa- 


tives, in  the  same  manner    and    under  the    same  regulations 
restrictions  as  if  they  had  been  born  in  lawful  wedlock. 


and 


Note. — References  to  Adjudged  Cases. 

Toomer  rs.  Tooraer,  2  Hay.  368  and  375,  S.  C.  1  Murph.  96.  Jones  i5s.  Spaight,  2 
Murph.  89.  Wilson  vs.  Hightower,  3  Hawks,  76.  Bell  vs.  Dosier,  1  Dev.  333.  Flint- 
ham  vs.  Holder,  1  Dev.  Eq.  345. 


CHAPTER  39. 


DIVORCE   Al^D  AL.IMONY. 


■/        ''-'"'■^-^■il 


jff^z-i 


(^  <^ 


AN  ACT  CONCERNING  DIVORCE  AND  ALIMONY. 


Section 

1.  Courts  of  law  and  equity  to  have 

jurisdiction  of  divorce  and  alimony. 

2.  Cases  in  which  divorce   or  alimony 

may  be  granted. 

3.  Other  cases  in  which  divorce  from 

bed  and  board,  alimony  or  separate 
maintenance  may  be  granted. 

4.  Alimony  may  be  granted  when  the 

husband  is  a  spendthrift,  &c. 

5.  Proceedings   to  obtain   divorce  and 

alimony. 

6.  Cause  of  complaint  must  have  exist- 

ed six  months,  and  petitioner  must 
have  resided  in  the  State  three 
years — Proviso . 

7.  Rules  as  to  depositions  and  costs. 

8.  What  shall  be  a  bar  to  a  suit  for  di- 

vorce for  the  cause  of  adultery. 

9.  What  decree  the  court  may  make  — 

Innocent  party  may  marry  again — 


10 


11. 


Section 

No  decree  to  render  the  children 
illegitimate. 

Proceedings  against  the  husband 
when  alimony  is  allowed. 

In  case  of  divorce  from  bed  and 
board,  the  wife  shaU  have  aU  the 
property  she  may  thereafter  ac- 
quire, and  may  sue  and  be  sued 
alone. 

The  superior  courts  of  law  may,  oa 
petition  of  a  married  woman,  de- 
cree that  the  property  she  after- 
wards acquires  may  be  secured  to 
her,  and  that  she  may  sue  and  be 
sued  as  ayeme  sole. 

1 3.  Appeal  allowed  to  the  supreme  court. 

14.  Party  against  whom  there  is  a  de- 

cree  of  divorce,  not  permitted  to 
many  again. 


12. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  ofJ\*orth 

Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

Courts  of  law   That  the  superior  courts  of  law  and  the  superior  courts  of  equity 

T^  XriJdic    ^^^^^  ^^^^^  ^°^®  ^"^  original  jurisdiction  in  all  cases  of  application 

tion  of  divorce 

and  alimony.  i_  1327  c.  19,  s.  1.— 1828,  c  44,  s,  1.— 1834,  c.  15. 


Chap.  XXXIX.]  divorce  and  alimony.  239 

for  divorce,  and  shall  also  have  jurisdiction  of  applications  for 
alimony. 

2.  When  a  marriage  hath  been  heretofore  or  shall  be  hereafter  Cases  in  which 
contracted  and  celebrated  between  any  two  persons,  and  it  shall  ^^°y°^°y^g' 
be  adjudged  in  the  manner  hereinafter  mentioned  that  either  party,  granted. 

at  the  time  of  the  contract,  was  and  still  is  naturally  impotent,  or 
that  either  party  has  separated  him  or  herself  from  the  other  and  is 
living  in  adultery,  or  that  any  other  just  cause  for  a  divorce  exists, 
in  every  such  case  it  shall  and  may  be  lawful  for  the  injured  per- 
son to  obtain  a  divorce,  either  from  bed  and  board  or  from  the 
bonds  of  matrimony,  at  the  discretion  of  the  court,  or  a  decree 
for  alimony  only,  if  no  more  is  demanded,  to  continue  as  long  as 
the  justice  of  the  case  may  require. 

3.  If  any  person  shall  either  abandon  his  family,  or  maliciously  Other  cases  m 

•'X  •'  •'  •   ■which  QivorcG 

turn  his  wife   out  of  doors,  or  by  cruel  or  barbarous   treatment  from  bed  and 
endanger  her  life,  or  offer  such  indignities  to  her  person  as  to  ren- !'oa,rd  and  al- 
der her  condition  intolerable  or  life  burthensome,  it  shall  and  may  arate  main- 
be  lawful  for  the  superior  court  of  law  or  court  of  equity  to  grant  tenance  may  be 
a  divorce  from  bed  and  board,  and  also  to  allow  her  such  alimony 
as  her  husband's  circumstances  will  admit,  not  exceeding  one  third 
part  of  the  annual  income  or  profits  of  his  estate,  or  of  his  occu- 
pation or  labors,  or  by  assigning  to  her  separate  use  such  part  of 
the  real  and  personal  estate  of  the  husband  as  the  court  shall  think 
fit,  not  exceeding  one  third  part  of  the  husband's  estate,  as  the  jus- 
tice of  the  case  may  require,  which  shall  continue  until  a  recon- 
ciliation shall  take  place  between  the  parties  :  Provided  alivays^ 
that  nothing  herein  contained  shall  be  construed  in  any  wise  to 
affect  the  rights  of  any  creditor  or  creditors  of  the  husband. 

4.  When  a  man  shall  become  an  habitual  drunkard  or  spend- 
thrift, wasting  his  substance  to  the  impoverishment  of  his  family,  Ahmony  may 
in  every  such  case  it  shall  be  lawful  for  his  wife  to  claim  and  for  when  the  hus- 

,  the  court  to  decree  an  alimony  as  aforesaid  :   Provided,  that  nothing  ^^"^'^jll^f. 

herein  contained  shall  exempt  any  property,  which  he  may  then  &c. 
'   possess,  from  the  payment  of  just  claims  against  him  up  to  the 

period  when  alimony  shall  be  granted. 

5.  The  husband  or  wife  claiming  to  be  divorced,    or  the  wife  Proceedings  to 
claiming  ahmony,  may  exhibit  his  or  her  petition  or  hbel  to  one  of°^^'^,^"'^^^°'''^*^ 

,.1°  ^,-"*'.  I..  r  ....    or  ahmony. 

the  judges  oi  the  superior  courts  oi  law  or  courts  of  equity  in  this 
State  in  term  time,  or  to  one  of  the  judges  in  the  vacation,  at  least 
thirty  days  before  the  next  term,  setting  forth  therein  particularly 
and  especially  the  causes  of  his  or  her  complaint,  and  shall  together 
with  such  petition  or  libel  exhibit  an  affidavit  on  oath,  taken  before 
one  of  the  judges  of  the  superior  courts  or  some  justice  living  in 
the  county  where  he  or  she  resides,  that  the  facts  contained  in 
such  petition  or  hbel  are  true  to  the  best  of  his  or  her  knowledge 
and  belief,  and  that  the  said  complaint  is  not  made  out  of  levity  or 
by  collusion  between  the  said  husband  and  wife,  and,  if  for  divorce, 

2.  1814,  c.  869,  s.  1.— 1827,  c.  19,  s.  1.— 1828,  c.  44,  s.  2. 

3.  1814,  c.  869,  s.  S. 

4.  1528,  C.  44,  S.  3. 

5.  1814,  c.  S69,  S.  2.-^1824,  C.  124S,  S.  3. 


240  DIVORCE  AND  ALIMONY.    [ChAP.  XXXIX. 

not  for  the  mere  purpose  of  being  freed  and  separated  from  each 
other,  but  in  sincerity  and  truth  for  the  causes  mentioned  in  the 
said  petition  or  Ubel  ;  bond  with  sufficient  security  for  the  prose- 
cution of  the  same  being  first  given  as  required  in  other  cases  at 
law  or  equity  ;  and  thereupon  a  subpoena  may  and  shall  issue  from 
the  said  court,  directed  to  the  person  so  complained  against,  com- 
manding him  or  her  to  appear  at  the  next  superior  court  of  law  or 
court  of  equity,  to  be  held  for  the  said  county,  then  and  there  to 
plead  or  answer  to  the  said  petition  or  libel,  and  upon  due  proof 
at  the  return  of  the  said  process  that  a  copy  thereof  was  served, 
either  personally  on  the  said  party,  or  that  he  or  she  could  not  be 
found  and  that  a  copy  thereof  was  left  at  his  or  her  last  place  of 
abode  in  said  county,  at  least  ten  days  before  the  day  of  the  said 
return  inclusive,  if  he  or  she  shall  refuse  or  neglect  to  appear,  then 
an  alias  subpoena  shall  issue,  returnable  to  the  first  day  of  the  next 
term,  and  be  served  personally  in  manner  aforesaid  ;  but  if  he  or 
she  cannot  be  found,  then  proclamation  shall  be  publicly  made  by 
the  sheriff  at  the  door  of  the  court  house  for  the  party  to  appear 
and  answer  as  commanded  by  the  subpoena,  and  notice  thereof 
shall  be  given  in  two  newspapers,  such  as  the  court  may  order, 
for  three  months,  and  in  the  mean  time  the  said  court  shall  and 
may  make  such  preparatory  rules  and  orders  in  the  cause  as  may 
be  necessary  to  prepare  the  same  for  trial,  when  the  court  may 
determine  ex  parte  if  necessary  :  Provided  always^  that,  in  all  suits 
commenced  under  this  act,  the  material  facts  charged  in  the  said 
petition  or  libel  shall  be  submitted  to  a  jury,  upon  whose  verdict, 
and  not  otherwise,  the  court  shall  decree,  any  rule  or  practice  to 
the  contrary  notwithstanding  :  Provided  also,  that  if  the  party,  so 
exhibiting  his  or  her  petition,  shall  make  oath  at  the  time  of  filing 
the  same  that  he  or  she  is  not  worth  the  sum  of  two  hundred  dol- 
lars, bond  for  the  payment  of  the  costs  of  the  suit  shall  not  be 
required  from  such  party. 
Cause  of  com-  6.  No  petition  shall  be  sustained  under  this  act,  unless  the 
Eav^e  existed  petitioner  shall  state  and  swear,  that  the  facts,  the  ground  of  his  or 
six  months  and  her  complaint,  have  existed  to  his  or  her  knowledge  at  least  six 
Eave^resided"iii  ^o"*^^^  prior  to  the  filing  of  the  petition,  nor  shall  any  person  be 
the  State  three  entitled  to  sue  under  this  act,  unless  he  or  she  shall  have  resided 
years.  within  this  State  three  years  immediately  preceding  the  exhibition 

Proviso.  of  his  or  her  petition  :    Provided,  that  the  three  years'  residence 

required  in  this  section  shall  not  apply  to  cases  brought  under  the 
fourth  section  of  this  act. 
Rules  as  to  de-      7.   The  parties  m^ay  take  testimony  by  depositions,  under  the 
costs^.°°^  ^"      same  rules,  regulations  and  restrictions  as  exist  in  suits  of  equity 
in  this  State,  and  the  court  may  award  costs  to  the  party  in  whose 
behalf  the  sentence  or  decree  shall  pass,  or  that  each  party  shall 
pay  his  or  her  own  costs,  as  to  the  court  shall  appear  reasonable. 
What  shall  be       8.  In  any  suit  for  a  divorce  for  the  cause  of  adultery,  if  it  shall 
for  divorce7or  ^e  proved  that  the  plaintiff  has  been  guilty  of  the  like  crime,  or 

the  cause  of 

adultery.  g    13^4^  g.  ggg,  5.  e  and  7. 

7.  1814,  c.  869,  s.  8  and  10. 

8.  1814,  c.  869,  s.  3. 


Chap.  XXXIX.]  divorce  and  alimony.  241 

has  admitted  the  defendant  hito  conjugal  society  or  embraces, 
after  he  or  she  knew  of  the  criminal  fact,  or  that  the  said  plaintiff 
(if  the  husband)  allowed  of  his  wife's  prostitution,  or  exposed  her  to 
lewd  company,  whereby  she  became  ensnared  to  the  crime  afore- 
said, it  shall  be  a  good  defence  and  a  perpetual  bar  against  the  said 
suit. 

9.  It  shall  and   may  be  lawful   for  the  courts   aforesaid,  after  What  decree 
hearing  any  cause  commenced  in  virtue  of  this   act,  to  determine  make°"'^^  ^^^ 
the  same  as  to  law  and  justice  shall  appertain,  by  either  dismissing 

the  petition  or  libel,  or  sentencing  and  decreeing  a  divorce  and 
separation  from  bed  and  board  or  from  the  bonds  of  matrimony, 
or  tliat  the  marriage  is  null  and  void,  or  that  the  wife  shall  have 
alimony  agreeably  to   the  prayer  thereof ;    and  such  court  shall 
have  power  to  decree  alimony  to  the  wife  in  the  case  of  general 
divorce  upon  the  petition  of  the  wife  ;  and  after  a  sentence  nulli- 
fying or  dissolving  the  marriage,  all  and   every  the  duties,  rights 
and  claims  of  the  parties,  in  right  of  said  marriage,  shall  cease  and  j^jj^^j^gj^^      ^ 
determine,  and   the  complainant  or  innocent  person   shall  be  at  may  marry 
liberty  to   marry  again  as  if  he  or  she  had  never  been  married  :  '^^^'^• 
Provided  always,  that  nothing  herein  contained  shall  be  construed  No  decree  to 
to  extend  to  affect  or  render  illegitimate  any  child  or  children  born  children  iUe- 
of  the  body  of  the  wife  during  the  coverture.  gitimate. 

10.  The  husband,  against  whom  alimony  or  separate  mainte- Proceedings 
nance  may  be  decreed,  shall  give  good  and  sufficient  security  in  husband  when 
open  court,  to  be  approved  by  the  court,  for  the  faithful  perform-  alimony  is  al- 
ance  of  the  same,  and  in  case  of  failure  shall  stand  committed  until 

the  order  or  decree  of  the  court  is  complied  with  ;  or  the  court 
may  direct  execution  to  issue,  as  in  cases  at  law,  for  the  money 
thus  decreed  and  a  writ  of  venire  to  the  jury  to  lay  off  and  allot 
the  real  or  personal  estate  decreed  to  the  wife. 

1 1 .  When  the  court  shall  decree  a  divorce  from  bed  and  board,  i"  <=^*^  °^  ^^' 
the  wife  so  divorced  shall  have  capacity  to  acquire,  retain  and  dis-  bed  and  board, 
pose  of  all  such  property  as   may  thereafter  be   procured  by  her  '^^  ^^^^  ^^^^^ 
own  industry  or  may  accrue  to  her  by  descent,  devise,  gift,  be-  property  she 
quest,  or  in  any  other  manner,  and  the  said  property  shall  not  be  may  thereafter 
liable  to  the  power,  dominion,  control,  or  debts  of  her  husband,  may  sue  and ba 
but,  on  her  death,  without  a  disposition  by  her,  shall  be  transmissi-  ^^^^  ^^°'^^- 
ble  in  the  same  manner  as  though  she  were  unmarried  ;  and  the 

wife  may  sue  and  be  sued  without  joining  her  husband,  and  may 
claim  redress  for  and  be  made  liable  upon  contracts  and  injuries 
thereafter  made  and  done,  as  though  she  were  a  feme  sole. 

12.  When  any  married  woman  shall  file  her  petition  in  any  of  The  superior 
the  superior  courts  of  law  of  this  State,  praying  that  alimony  may  may^  ot  pe'ti^' 
be  decreed  to  her  and  that  such  property  as  she  may  thereafter  ac-  tion  of  a  mar- 
quire  may  be  also   secured  to  her,   the  judges  of  the  said  courts  decreT°that"the 
may,  if  they  think  proper,  decree  that  the  petitioner  may  sue  and  property  she 
be  sued  in  her  own  name,  without  joining  the  name  of  her  husband,  'JJ;quire  may  be 

9.  1S14,  c.  869,  s.  4. 

10.  1814,  c.  869,  s.  11. 

11.  1810,  c.  1007. 

12.  1S28,  c,  44,  s.  4.— 1829,  c.  28. 

VOL.  I.  31 


242  DRAINING  LOW  LANDS.  [ChAP.  XL. 

secured  to  her,  in  any  court  of  record  or  before  any  justice  of  the  peace  in  this 
may^sue  and  be  State,  and  that  all  such  property  as  may  thereafter  be  procured  by  her 
sued  as  a/emeown  industry  or  may  accrue  to  her  by  descent,  devise,  gift,  bequest 
or  in  any  other  manner  shall  be  secured  to  her  and  shall  not  be  liable 
to  the  power,  dominion,  control  or  debts  of  her  husband,  but,  on 
her  death,  without  a  disposition  by  her,  shall  be   transmissible  in 
the  same  manner  as  though  she  were  unmarried  and  in  the  same 
manner  as  if  the  petitioner  was  a  feme  sole. 
Appeal  allowed      13.   Jn  every  case  of  an  appHcation  for  a  divorce  or  for  ahmony 
court?  ^"^"^^"^^  and  a  final  judgment  thereon  by  the  superior  court  of  law  or  court 
of  equity,  it  shall  be  lawful  for  the  party,  against  whom  such  judg- 
ment is  rendered,  to  appeal  therefrom  to  the  supreme  court,  whose 
duty  it  shall  be,  according  to  the  facts  ascertained  in  the  superior 
court,  to  make  such  decree  thereon  as  shall  be  just,  and  when  an 
appeal  shall  be  prayed  from  the  judgment  of  the  superior  court  of 
law  or  court  of  equity,  it  shall  be  lawful  to  grant  such  appeal  with- 
out bond  or   security,  if  the  situation  of  the  party  appellant  shall 
render  it  necessary  for  the  purposes   of  justice,   that  an   appeal 
should  be  thus  prosecuted. 
Party  against        14.  No   defendant  or  party  offending,  who  shall  be   divorced 
^decree  oFdi-^''^"^  ^^^  bonds  of  matrimony,  under  the  provisions  of  any  act  of 
vorce,  not  per-  the  General  Assembly  of  this   State,  shall   ever  be   permitted  to 
^ggj^'^  ^°  "^^^^"^' marry  again,  and  if  he  or  she  shall  offend  against  the  true  intent 
and  meaning  of  this  act,  he  or  she  shall  be  subject  to  all  the  pains 
and  penalties  which  are   inflicted  by  law  upon   persons   guilty  of 
bigamy. 

13.  1827,0.  19,  s.  3  and  4, 

14.  1S27.  c.  19,  s.  5. 


Note. — References  to  Adjudged  Cases. 

Sect.  2.  Scroggins  vs.  Scroggins,  3  Dev.,  535.     Harden  vs.  Harden,  ib.,  548.    Collier 
vs.  Collier,  1  Dev.  Eq.  352.     Whittington  vs.  Whittington.  2  Dev.  and  Bat. 
Sect.  3.  Longrs.  Long,  2  Hawks,  189. 


CHAPTER  40. 

DRAINING  liO^V  I.ANDS 


AN  ACT  CONCERNING  THE  DRAINING  OF  LOW^  LANDS. 


Section 
1.  Mode  of  proceeding  by  those  desi- 
rous of  draining  their  lands — Court 
to  appoint  twelve  jurors  —  Their 
duty— On  payment  of  damages, 
title  of  land  to  vest. 


Section 
2.  Jury  to  make  a  return  of  their  pro- 
ceedings  to  court — Their  compen- 
sation— Proviso. 


Chap.  XL.]         draining  low  lanes.  243 

1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina,  and  it  is  hereby  enacted  by   the   authority  of  the  same, 

That  any  person  or  persons^  owning   pocoson   or    flat   lands,  and  ^i^^^  ^f  p^o. 
being  desirous  to  drain  the  same,  but  being  prev^ented  by  the  propri-  ceedin|  by 
etor  or  proprietors  of  lands  adjoining  him  or  them,  it  shall  be  lawful  of*^draining"^* 
for  such  person  or  persons,  who  are    desirous  to  drain  their  said  their  lands. 
pocoson  or  flat  lands,  to  prefer  a  petition  to  the  court  of  the  county, 
wherein  the  said  lands  may  be  situated,  setting  forth  the  particular 
circumstances  of  his  or  her  case,  situation  of  the  lands,  and  to  what 
stream  or  water  course  he  or  she  would  wish  to  drain  the   same, 
whereupon  the  court  shall  appoint  twelve  freeholders  in   the   said  Court  to  ap- 
county,  not  attached  to  either  party  by    consanguinity   or  affinity,  mrors.^  Tbeir 
who  shall  go  upon  the  premises  and  examine  the  ground    so  peti-  duty. 
tioned  to  be  drained,  and  that  through  which  the  canal    or   ditch 
shall  pass,  and  also  whether  such  canal  or  ditch  shall  appear  neces- 
sary, and  further  they  shall  direct  the  ditch  to  be  cut  in  such  man- 
ner and  extent,  as  in  their  opinion  wdll  most  effectually  secure  the 
lands,  through  which  it  passes,  as  well  as  that  where  it  terminates, 
from  inundation  ;  and  the  jury  aforesaid,    shall,  upon  oath,  value 
and  assess  what  damages  the  proprietor  or  proprietors  of  the  land, 
through  which  such  drain  is  to  be  cut,  will  sustain  ;  and,  where  the 
same  shall  appear  necessary,  the  damage  shall  be    paid  before  the 
petitioner  or  petitioners  proceed  to  cut  a   ditch  or  ditches  through 
or  into  such  proprietor  or  proprietors'  lands,  and    w^hen   the    peti- 
tioner or  petitioners  aforesaid  shall  have  so  paid  to  the   proprietor  On  payment  of 
or  proprietors  of  such  lands,  as  aforesaid,  the  damages   or    injury  ^^'^^^j' ";^^^ 
the  jury  might  judge  he  or  they  sustained,  he  or  they,  their   heirs 
or  assigns,  so  paying,  shall  thereafter  be   vested  with  a  good    and 
sufficient  title  in  fee  for  the  lands  so  petitioned  for. 

2.  In  all  cases  where  a  jury  is  appointed  for  the  purposes  afore- J^y  to  make  a 
said,  it  shall  be  their  duty  to  make  a  fair  return  of  their  whole  pro- p^^edino's^o 
ceedings  to  the  next  succeeding  county  court,  which  shall  be  record-  court.    TBeir 
ed  in  the  said  courts  respectively  ;  and  each  of  the  jury  appointed '^"^^^"^^  ^°"" 
as  aforesaid  shall  be  entitled  to  the  sum  of  eighty  cents,  for  each 

day  that  they  may  necessarily  be  employed  in  laying  off"  said 
ground,  which  sum  shall  be  paid  to  each  juryman  by  the  petitioner 
or  petitioners  :  Provided,  nevertheless,  that  nothing  in  this  act  shall 
be  construed  so  as  to  authorize  the  running  of  any  ditch  or  canal  '^^^^°^- 
through  the  yard  or  curtilage  of  any  proprietor,  without  the  con- 
sent of  such  proprietor.  Jlnd  provided  also,  that  no  such  drain  or 
ditch  shall  be  cut,  so  as  to  injure  any  pond  or  ponds  belonging  to 
any  mill  or  mills,  which  now  are  or  hereafter  may  be  estabhshed 
by  law,  or  to  prevent  the  proprietor  or  proprietors,  through  whose 
lands  the  said  ditch  or  canal  may  pass,  from  putting  a  fence  or 
bridge  across  the  same  :  Provided,  such  bridge  or  fence  shall  not 
obstruct  the  free  passage  of  the  water  down  said  canal  or  ditch. 

1.  1795,  c.  436,  s.  1. 

2.  1795,  c.  436,  s.  2—1835,  c  7. 


tCyll     D    ILS 


244  ELECTORS  OF  PRESIDENT,  ETC.    [ChAP.  XLI. 

,^,,   ,.   ^j    ,,       V/       CHAPTER  41. 


ELECTORS    OF    PRESIDENT   AND 
TICE   PRESIDENT. 


AN  ACT  PROVIDING  FOR  THE  APPOINTMENT  OP  ELECTORS  TO 
VOTE  FOR  PRESIDENT  AND  VICE  PRESIDENT  OF  THE  UNITED 
STATES. 


Section 

1 .  State  divided  into  fifteen  districts  for 

choosing  electors  to  vote  for  presi- 
dent and  vice  president  of  the  Uni- 
ted States — Time  and  manner  of 
holding  the  elections  for  electors — 
Certificate  and  return,  by  whom  to 
be  made — Penalty  in  case  of  failure 
to  make  returns. 

2.  Election  of  electoi-s  to  be  held  every 

four  years. 

3.  When  and  where  the  electors  shall 

meet  to  give  their  votes. 


State  divided 
into  fifteen  dis- 
tricts for 
choosing  elec- 
tors to  vote  for 
president  and 
vice  president 
of  the  United 
States. 


Section 

4.  The  governor  shall  issue  Ms  procla- 

mation for  an  election  in  case  of  a 
vacancy  in  both  the  offices  of  presi- 
dent and  vice  president. 

5.  Penalty  on   electors  for  failing  to  at- 

tend— On  sherifis  for  refusing  to 
take  the  poll  or  making  false  re- 
turns, &c. 

6.  Compensation  of  electors — Of  sher- 

iifs  for  holding  elections,  &c. 

7.  Electors  may    supply   vacancies  in 

their  body. 


1.  Be  i^  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  this  State  shall  be  divided  into  fifteen  districts,  for  the  pur- 
pose of  choosing  electors  for  a  president  and  vice  president  of  the 
United  States,  in  the  following  manner,  to  w^it  :  The  counties  of 
Burke,  Buncombe,  Rutherford,  Haywood,  Macon  and  Yancey 
shall  compose  one  district :  The  counties  of  Wilkes,  Iredell, 
Surry  and  Ashe  shall  compose  one  district  :  The  counties  of 
Mecklenburg,  Cabarrus  and  Lincoln  shall  compose  one  district  : 
The  counties  of  Rowan,  Davidson,  Davie  and  Montgomery  shall 
compose  one  district  :  The  counties  of  Rockingham,  Stokes  and 
Caswell  shall  compose  one  district  :  The  counties  of  Randolph, 
Guilford  and  Chatham  shall  compose  one  district  :  The  counties 
of  Richmond,  Anson,  Robeson,  Moore  and  Cumberland  shall 
compose  one  district  :  The  counties  of  Person,  Orange  and  Gran- 
ville shall  compose  one  district  :  The  counties  of  Wake,  John- 
ston and  Wayne  shall  compose  one  district :  The  counties  of 
Warren,  Franklin,  Halifax  and  Nash  shall  compose  one  district  : 
The  counties  of  Bertie,  Northampton,  Hertford  and  Martin  shall 
compose  one  district  :  The  counties  of  Pasquotank,  Gates,  Chow- 
an, Perquimons,  Camden  and  Currituck  shall  compose  one  dis- 
trict :  The  counties  of  Beaufort,  Edgcombe,  Pitt,  Washington, 
Tyrrel  and  Hyde  shall  compose  one  district:  The  counties  of 
Craven,  Greene,  Lenoir,  Jones,  Carteret  and  Onslow  shall  com- 


1.  1813,  e.  S'86.  s.  1. 


Chap.  XLL]  electors  of  president,  etc.  245 

pose  one  district :  The  counties  of  Bladen,  Sampson,  Columbus, 
Duplin,  New  Hanover  and  Brunswick,  shall  compose  one  district  : 
which  said  districts  shall  be  denominated  electoral  districts  ;  that 
the  persons  qualified  to  vote  for  members  of  the  house  of  com- 
mons of  the  General  Assembly  of  this  State,  in  said  counties  re- 
spectively, shall  meet  on  the  second  Thursday  of  November,  one 
thousand  eight  hundred  and  forty,  at  the  place  or  places  by  law  J^^^f^^^j^j^"' 
established  in  their  several  counties  for  the  election  of  members  the  elections 
of  the  General  Assembly,  and  there  give  their  votes  by  ballot  for  ^°'^  electors. 
fifteen  discreet  persons,  being  freeholders,  one  of  whom  shall  actu- 
ally reside  within  each  of  the  electoral  districts  as  herein  before 
laid  off ;  that  the  polls  shall  be  held  in  the  same  manner  and  by 
the  same  officers,  and  under  the  same  rules  and  regulations  as  the 
polls  for  the  election  of  members  of  the  General  Assembly  ;  and 
in  case  any  ticket  should  contain  two  or  more  names  of  per- 
sons residing  in  the  same  electoral  district,  that  one  of  such  per- 
sons only,  whose  name  shall  be  first  on  said  ticket,  shall  be  taken 
and  held  as  the  person  duly  voted  for.  And  in  like  manner  if  two 
or  more  of  the  persons  shall  be  of  the  fifteen  first  upon  the  poll, 
who  shall  reside  in  the  same  district,  he  who  shall  have  the  greatest 
number  of  votes  shall  be  taken  and  held  duly  elected  ;  and  the 
sheriffs  of  the  several  counties,  or  other  officers  duly  authorized, 
who  shah  have  held  the  said  pohs,  shall,  widiin  two  days  after  the 
day  of  holding  the  said  polls,  ascertain,  by  faithful  addition  and 
comparison  of  the  number  of  votes  for  every  person,  who  shall 
have  been  voted  for  as  an  elector,  and  shall  certify  in  words,  and 
not  in  figures,  under  their  hands,  in  manner  and  form  following, 
to  wit  :  I,  A.  B.,  sheriff  of  county  (or  deputy  sheriff,  Certificate  and 

or  other  officer  duly  authorized  as  the  case  maybe)  do  hereby  return  — by 
certify  that  an  election  was  held  on  the  day   (or  days,  as  the  case  made, 
may  be)  and  at  the  place  (or  places,  as  the  case  may  be)  fixed  by 
law  within  the  said  county  for  this  purpose,  and  that  the  number  of 
votes  herein  specified,  opposite  the  names  of  the  several  persons 
foUowing,  was  given  by  voters  qualified  to  vote  for  this  purpose, 
for  such  persons   as  electors  for  the   State  of  North  Carohna  of 
president  and  vice  president  of  the   United    States  :  namely.  For 
D.  C.  (here  state  the  number  of  voters  given  for  D.   C.)  for  E. 
F.  (here  state  the  number  of  voters  given  for  E.  F.)    and  so  on 
until  the  list  of  such  persons   so  voted  for,  and  of  the  number  of 
votes  shall  be   complete  :    Given  under    my    (or  our)  hand   (or 
hands,  as  the  case  may  be)  this  day  of  in  the  year  of 

our  Lord  eighteen  hundred  ,  and  two  fair  copies  of  such  cer- 

tificate and  return  shah  be  made  by  the  sheriff,  deputy  sheriff  or 
other  officer,  as  the  case  may  be,  under  his  or  their  hands,  one  of 
which  shall  be  dehvered  to  some  one  person  among  the  fifteen,  who 
shall  have  therein  the  greatest  number  of  votes,  given  at  the  election 
poll  so  held  by  the  sheriff  or  other  officer  so  certifying,  as  the  case 
may  be,  and  the  other  shall  be  returned  to  the  governor  of  this 
State,  within  eight  days  after  the  day  of  holding  the  said  polls, 
under  the  penalty  of  four  hundred  dollars,  upon  such  sheriff,  his  P^ndty  in  case 
deputy  or  other  officer  holding  such  election,  in  the  case  of  his  or  make  return. 


246  ELECTORS  OF  PRESIDENT,  ETC.  [ChAP.  XLI. 

their  failure  in  so  doing,  to  be  recovered  by  the  attorney  general 
or  solicitor,  to  the  use  of  the  State,  by  an  action  of  debt  in  any 
'  court  of  record  within  this  State  in  the  name  of  the  governor  ; 
and  the  governor  shall,  upon  the  receipt  of  such  certificates  or  so 
many  thereof  as  shall  have  been  transmitted  to  and  received  by 
him,  on  or  before  the  Monday  before  the  first  Wednesday  of  De- 
cember next  following  the  day  of  holding  said  polls,  proceed  to 
ascertain  from  the  said  returns  the  fifteen  persons  for  whom  the 
greatest  number  of  the  whole  number  of  votes  throughout  the  State 
shall  have  been  given,  and  he  shall,  on  or  before  the  first  Wednes- 
day in  December  next  following  the  day  of  holding  the  said  polls, 
make  out  three  lists  of  the  names  of  the  fifteen  persons  for  whom 
the  greatest  number  of  votes  shall  appear  to  have  been  given  as 
aforesaid,  and  dehver  or  cause  the  same  to  be  dehvered  to  the  said 
fifteen  persons,  so  having  the  greatest  number  of  votes,  as  direct- 
ed by  the  act  of  congress,  and  the  governor  shall  lay  before  the 
General  Assembly,  for  their  inspection,  the  said  certificates  so  by 
him  received  from  the  several  sheriffs  as  aforesaid. 
Election  of  2.   Four  years   after  the   election  above   described,  and  every 

electors  to  be    fQ^j.  years  thereafter,  there  shall  be,  in  the  several  counties  of  this 

held  every  lour  „        •'  i  i        •  r     i  r  •  i  i      • 

years.  otate,  another  election  oi  electors  to  vote  tor  president  and  vice 

president  of  the  United  States,  to  be  held  on  such  days  and  at 
such  places  as  are  herein  before  prescribed  ;  and  all  such  acts,  mat- 
ters and  things  as  are  herein  directed  to  be  done  and  observed  at 
and  after  the  election  here  directed,  by  the  governor  of  this  State, 
and  by  the  sheriffs  of  the  several  counties,  or  deputy  sheriffs  or 
other  officers,  shall  be  done  and  observed  at  every  subsequent 
election  by  the  governor  for  the  time  being,  and  by  the  then 
sheriffs  of  the  several  counties,  deputy  sheriffs  or  other  officers 
respectively,  under  the  rules,  regulations  and  penalties  herein  pre- 
scribed and  directed. 
W^hen  and  3.    The  fifteen  persons,  for  whom  the  greatest  number  of  votes 

tors^shalfmeTt  throughout  the  State  shall  appear  to  have  been  given  as  aforesaid, 
to  give  their      shall  be  and  they  are   hereby  declared  to   be  electors,  for  and  on 
behalf  of  this  State,  to  vote  for  president  and  vice  president  of  the 
United  States  ;  and  shall  assemble  in  the  city  of  Raleigh,  on  the 
first  Wednesday  of  December,   one  thousand   eight  hundred  and 
forty,  and  on  the  first   Wednesday  of  December  next  after  their 
appointment    in    each   and   every  year,    in  which   they  shall    be 
appointed,  and  then  and  there  give   their  votes  for  president  and 
vice  president  of  the  United  States. 
The  governor        4.  Whenever  the  offices  of  president  and  vice  president  of  the 
shall  issue  his   Uj-jited  States  shall  both  become  vacant,  it  is  hereby  declared  to 

proclamation      ■,        ,        ■,  n   i  ri-o  ci-i- 

lor  an  election   be  the  duty  01  the  governor  ol  this  State  lor  the  time  being,  upon 
in  case  of  a  va- ^.g(,gjyjjjo.  g^  notification  of  such  vacancy  from  the  secretary  of  state 

cancy  in  both        r    i       t?  •      i   o  c      i      •  i  •  i  •  i  •  i- 

the  offices  of     ot  the  United  btates,  forthwith  to  issue  his  proclamation,  directing 

vice  president    ^^^^  sheriffs  of  the  several  counties  of  this  State,  or  other  officers, 

to  hold  elections,  within  their  respective  counties,  for  the  appoint- 

2.  1?15,  c.  836,  s.  2. 

3.  1815,  c.  886,  s.  3. 

4.  1815,  C.  886,  s.  4. 


Chap.  XLL]  electors  of  president,  etc.  247 

ment  of  electors  of  president  and  vice  president  of  the  United 
States,  on  the  days  of  the  year  in  which  such  vacancy  may  hap- 
pen, as  are  herein  prescribed  for  holding  the  regular  and  stated 
elections  :  Provided,  there  shall  be  a  space  of  two  months  between 
the  date  of  such  notification  and  the  said  first  Wednesday  of  De- 
cember :  but  if  there  should  not  be  the  space  of  two  months 
between  the  date  of  said  notification  and  the  said  first  Wednesday 
of  December,  the  governor  shall  specify  in  his  proclamation  that 
the  electors  shall  be  appointed  or  chosen  in  the  year  next  ensuing 
the  date  of  such  notification,  on  the  days  herein  before  stated,  and 
it  is  also  hereby  declared  that  the  electors,  appointed  in  the  man- 
ner by  this  section  directed,  shall  meet  at  the  city  of  Raleigh  on 
the  first  Wednesday  of  December  after  their  appointment,  and 
give  their  votes  for  a  president  and  vice  president  of  the  United 
States. 

5.  Each  elector,  chosqn  pursuant  to  this  act,  with  his  own  con- penalty  on 
sent  previously  signified,  failing  to  attend  and  vote  for  a  president  ^^ctors  for 
and  vice  president  of  the  United  States  at  the  time  and  place  here-  ten™^ 

in  directed,  shall   (except  in  consequence  of  sickness   or  other 

unavoidable  accident)   forfeit  and  pay  four  hundred   dollars,  to  be 

recovered  by  the  attorney  general  or   solicitor,   to  the  use  of  the 

State,  by  action  of  debt,  in  the  name  of  the  governor  for  the  time 

being,  in  any  court  of  record.     And   any  sheriff  or  other  officer,  On  sheriffs  for 

duly  authorized  for  that  purpose,  refusing  to   take  the  poll,  when '■^^"^i"? ^°  ^'^^^ 

he  shall  be  thereunto  required  by  a  person   qualified  to  vote,  or  making' fdse 

making  or  signifying,  or  delivering  or  transmitting  a  false  certificate  returns,  &c. 

or  return  of  an   election,  as  here  directed,  or  making  any  erasure 

or  alteration  in  the  poll  books,  or  refusing  to  suffer  any  candidate 

or  person  qualified  to  vote,  at  his  or  their  own  expense,  to  have  a 

copy  of  the  poll  books,  shall  forfeit  and  pay  two  hundred  dollars, 

which  may  be  recovered  with  costs  of  suit  in  any  court  of  record, 

by  any  person  who  will  sue  for  the  same  in  an  action  of  debt,  one 

half  to  the  use  of  the  person  first  suing  therefor,  and  the  other  half 

to  the  use  of  the  State. 

6.  The  electors,   appointed  in  pursuance  of  this   act,   shall  be  Compensation 
allowed  for  their   travelling  to  and  from  the   city  of  Raleigh  and  "^  ^^^ctors. 
their  attendance,  the  same  compensation,  as  by  law  is  or  may  be 

allowed  members  of  the  General  Assembly,   and  shall  be  entitled 

to  the  same  privileges  as  members  of  the  General  Assembly  :  and 

the  same  allowances  shall  be  made  to  the  sheriffs  or  other  officers  hoHb-^de^""^ 

holding  said  elections,  for  holding  the   same  and  conveying  the  tions "Ic.  ^^'^ 

duplicate   certificate  to  the  governor,  as   is   or  may  be  allowed  to 

him  or  them  in  the  case  of  an  election  for  members  of  congress. 

7.  In  case  any  of  the  electors,  chosen  as  by  this  act  directed.  Electors  may 
should,  by  sickness  or   any  other  cause,  not  attend  and  give  their  caE In' their 
votes  as  herein  prescribed,   the  other  electors  then  present  shall  ^°'^y- 

and  may  by  vote  appoint  some  other  person  or  persons,  as  the 
case  may  be,  to  supply  the  place  or  places  of  the  person  or  per- 
sons so  not  attending  as  aforesaid  ;  and  the  person  or  persons,  so 

5.  1815,  c.  886,  s.  5. 

6.  1815,  c.  886,  s.  6. 

7.  1815,  c.  886,  s.  7. 


248  ENTRIES    AND    GRANTS.  [ChAP.  XLII. 

appointed  by  the  electors,  shall  be  taken  and  held  to  all  intents  and 
purposes  as  an  elector  or  as  electors  to  vote  for  president  and  vice 
president  of  the  United  States,  and  as  such  shall  give  his  vote  or 
their  votes  in  the  same  manner  as  the  other  electors  chosen  in  the 
manner  herein  before  prescribed. 


CHAPTER  42. 


ENTRIES    AND  GRANTS, 


AN  ACT  CONCERNING  ENTRIES  AND  GRANTS  OF  LAND. 


Section 

1 .  WhaX  lands  subject  to  entry. 

2.  Swamp  land     not    exceeding  fifty 

acres. 

3.  Land   in   a   swamp    containing  not 

more  than  two  thousand  acres. 

4.  Appointment  of  entry  takers  and  sur- 

veyors. 

5.  When  a  vacancy,  clerk  of  the  county 

court  to  act  as  entry  taker. 

6.  Oaths  and  bonds  of  entry  takers  and 

surveyors. 

7.  Surveyors  may  appoint  deputies. 

8.  Every  citizen  may  enter  lands. 

9.  Price   at  which    lands  may  be  en- 

tered. 
10.  When  entry  money  to  be  paid. 
U.  On  failure  to  pay,  a  subsequent  en- 

terer  entitled. 
In  case   of  lapse,  the  same  person 

shall  not    re-enter   within   twelve 

months. 
How  entries  to  be  made  and  warrants 

to  issue. 
How  surveys   to  be  made   and  re- 
turned. 
Surveys  to  be  according  to  priority  of 

entry. 
When  the   warrant  is  lost,  duplicate 

may  issue. 

17.  On   the   death,   &c.  of  entry  taker, 

successor  to  issue  warrants. 

18.  How  entry  takers  to  make  entries  for 

their  own  use. 

19.  How  surveyors  to  have  surveys  made 

for  themselves. 

20.  Entry  takers  to  make  annual  returns 

to  the  secretary  of  state. 


12. 


13. 


14. 


15. 


16. 


Section 

21.  Penalty  for  failure,   how   to  be  re- 
covered. 
Public  treasurer  to  receive  the  en- 
try money. 
When    the    secretary    shall    issue 


22. 


23. 


24.  How  grants  to  be  authenticated— All 

grants  to  be  registered — Copies  may 
be  registered. 

25.  How  the  grant  to  issue  on  the  death 

of  enterer. 

26.  When  a  seal  to  a  grant  is  lost,  it 

may  be  renewed. 

27.  Certain  grants   heretofore  issued  to 

surveyors,  &c.  confirmed. 

Certain  other  grants  declared  valid. 

Grants  made  upon  entries,  extend- 
ing into  two  or  more  counties,  con- 
firmed. 

How  to  correct  mistakes  made  by 
surveyors  or  other  officers  in  per- 
fecting titles  to  land  upon  entries. 

Persons  aggrieved  by  the  issuing  of 
patents,  how  to  proceed. 

32.  Proceedings   and  judgment   of    the 

court  in  such  cases — Copy  to  be 
filed  in  secretary's  ofiice. 

33.  Whenever  the  State  wishes  to  repeal 

letters  patent  or  grant,  the  supreme 
court  to  have  original  jurisdiction. 

34.  What  decree  the  court  may  make. 

35.  Cases  now  in  the  superior  courts  may 

be  removed  to  the  supreme  court. 

36.  Indian    reservations   not  to  be  en- 

tered. 

37.  Time  for  paying   on  certain  entries 

extended. 


28 
29 


30 


31. 


/Y^f-7 


Chap.  XLIL]      entries  and  grants.  249 

1.  Be.  it  enacted  by  the  General  Assembly  of  the  State  of  JSTorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

That  all  vacant  and  unappropriated   lands  belonging  to  this  State  what  lands 

shall  be  subject  to  entry  in  the  manner  herein  provided,  except  in  subject  to  en- 

the  cases  hereinafter  mentioned.     It  shall  not  be  lawful  for  any 

entry  taker  to  receive  an  entry  for  any  lands  lying  to  the  westward 

of  the  line,  run  by  Meigs  and  Freeman  in  the  year  one  thousand 

eight   hundred  and  two,  as.  the  then  boundary  line  between   this 

State  and  the  Cherokee  nation,  except  the  vacant  and  unsurveyed 

lands  that  have  been  acquired  by  treaty  from  the  Cherokee  Indians 

in  the  years  one  thousand  eight  hundred  and  seventeen  and  one 

thousand  eight  hundred  and  nineteen  ;  or  of  any  lands  covered  by 

the  waters  of  any  of  the  lakes  of  the  State,  or  of  any  lands  now 

covered  by  the  waters  of  a  lake  that  shall  he  gained  therefrom  by 

the  recession,   draining  or  diminution  of  such  waters  :  and  every 

entry  made   and   every  grant  issued,   contrary  to  the  intent  and 

meaning  of  this  enactment,  shall  be  void. 

2.  It  shall  not  be  lawful  for  any  entry  taker  to  receive  any  entry  of  norexceedk^ 
vacant  and  unappropriated  marsh  and  swamp  lands,  except  in  cases  fifty  aeres. 
where  the  quantity  of  land  does  not  exceed  fifty  acres  in  one  body, 

and  that  situate  between  the  lines  of  tracts  heretofore   granted  ; 
except  in  the  case  hereinafter  provided. 

3.  It  shall  be  lawful  for  entry  takers  to  receive  entries  of  marsh  Land  in  a 
or  swamp   land,  when  the  quantity  of  land  in  anyone  marsh  or  f^PP '^"" 

1  1  11  r»        •  7    7    1  taming  not 

swamp  does  not  exceed  two  thousand  acres  :  Frovided,  however,  more  than  two 
that  this  act  shall  not  be  construed  to  extend  to  any  swamp  ©r  ^^^^^^""^ '^"^^' 
marsh  lands,  which  have  been  surveyed  by  engineers  ini  the 
employment  of  the  State,  with  a  view  to  the  draining  and  reclaim- 
ing the  same  ;  and  every  entry  or  grant  made  for  marsh  or  swamp 
lands,  contrary  to  the  intent  and  meaning  of  these  enactni^^iits, 
shall  be  void. 

4.  The  justices  of  the  peace  in  every  county,  at  the  next  court  ^PPy^"'^^^"®"^  °^ 
which  shall  be  held  after   each  respective  vacancy,  may,  vdien  and  surveyors, 
they  deem  it  necessary,  elect  one  good  and  sufficient  person  to 

receive  entries  of  claims  for  lands  within  such  county  respectively  ; 
and  also  shall  elect  not  more  than  two  persons  properly  qualified 
to  be  surveyor  of  lands  within  the  same ;  at  which  election,  who- 
soever shall  appear  to  have  the  majority  of  votes  of  the  justices 
then  present  shall  be  deemed  duly  elected,  and  no  other  :  and 
every  person  so  duly  elected  for  either  of  the  offices  aforesaid 
shall  hold  the  said  offices  respectively  during  the  term  of  four 
years. 

5.  Where  a  vacancy  now  exists  or  shall  hereafter  happen  i"  cancTderk  of 
the  office  of  entry  taker  in  any  county,  the  clerk  of  the  court  of  the  county 
pleas  and  quarter  sessions  of  the  said  county  shall  be  bound  to  actg""^  ^°j^g^^_^^ 
as  entry  taker,  until  such  vacancy  be  filled  by  a  regular  appointment, 

1.  1809,  c.  774.  s.  1.— 1817,  c.  950,  s.  I.— 1827,  c.  6.  s.  1,  2,  3.— 1335,  C.  6. 

2.  1S26,  c.  6. 

3.  1830,  c.  12. 

4.  1777,  c.  114,  B.  2.— 1322,  c.  1147,  8.  1.— 1831,  c.  6,  s.  2.— 1834,  c.  27,  s.  1. 

5.  1831,  c.  6,  s.  3. 

VOL.  I.  32 


250 


Oaths  and 
bonds  of  entry 
takers  and  sur 
Teyors. 


Surveyors  may 
appoint  dep- 
uties. 


Every  c'tizcn 
may  enter 
lands. 


Price  at  which 
lands  may  be 
entered. 


When  entry 
money  to  be 
paid. 


On  failure  to 
pay,  a  subse- 
quent enterer 
entitled. 


ENTRIES    AND   GRANTS.  [ChaP.  XLII. 

to  take  charge  of  the  books  belonging  to  the  office,  to  dischai-ge 
all  the  duties  and  receive  the  emoluments,  and  shall  be  subject  to 
the  rules,  restrictions  and  penalties  prescribed  by  law  for  entry 
takers  regularly  appointed. 

6.  Every  entry  taker  and  surveyor,  before  entering  opon  the 
execution  of  his  office,  shall  take  and  subscribe  in  open  court  the 
oath  prescribed  for  the  qualification  of  officers,  and  also  an  oath 
that  he  will  well  and  impartially  discharge  the  several  duties  of  his 
respective  office  ;  and  the  surveyor  shall  enter  into  bond  with  suf- 
ficient security,  to  be  approved  by  the  county  court,  in  the  sum 
of  four  thousand  dollars,  payable  to  the  State  of  North  Carolina, 
for  the  faithful  discharge  of  his  duties  ;  and  every  entry  taker  shall 
also  give  bond  in  the  sum  of  two  thousand  dollars,  payable  to  the 
State  of  North  Carolina,  that  he  will  well  and  truly  discharge  the 
duties  of  his  office. 

7.  It  shall  and  may  be  lawful  for  each  and  every  surveyor  in 
this  State,  in  his  respective  county,  to  appoint  a  deputy  or  depu- 
ties, who  shall,  previous  to  entering  on  the  execution  of  his  or 
their  office,  be  qualified  in  a  similar  manner  with  the  surveyor  ; 
and  the  surveyor  making  such  appointment  shall  be  liable  and 
accountable  for  the  conduct  of  such  deputy  or  deputies,  in  the 
same  manner  as  for  his  own  conduct  in  office. 

8.  It  shall  and  may  be  lawful  for  any  person,  who  is  or  shall 
hereafter  become  a  citizen  of  this  State,  to  make  with  the  entry 
taker  of  any  county  within  this  State  a  claim  for  any  lands,  subject 
to  entry,  lying  in  such  county  ;  every  such  citizen  performing 
every  thing  by  this  act  required  to  be  previously  done. 

9.  Five  cents  on  the  acre  shall  be  paid  to  the  treasurer  for 
•every  acre  of  land  which  may  be  entered  in  this  State  ;  Provided ^ 
that  no  person  shall  enter  more  than  one  hundred  acres  within  any 
one  year  at  the  price  of  five  cents  per  acre  :  if  any  person  shall 
enter  more  than  one  hundred  acres  of  land,  in  the  same  survey  or 
in  any  one  year,  he  shall  pay  into  the  treasury  the  sum  of  ten 
cents  on  the  acre  for  each  and  every  acre  which  he  may  enter. 

10.  All  entries  of  land  made  in  the  course  of  any  one  year  shall, 
in  every  event,  be  paid  for  on  or  before  the  thirtyfirst  day  of 
December,  which  shall  happen  in  the  second  year  thereafter  ;  and 
all  entries  of  land,  not  paid  for  agreeably  to  this  provision,  shall 
become  null  and  void,  and  the  land  shall  revert  to  the  State,  and 
may  be  entered  by  any  other  person  as  unappropriated  lands. 

11.  Whenever  any  entry  of  land  shall  be  made  in  any  entry 
taker's  office  in  this  State,  and  the  enterer  shall  fail  to  pay  the 
purchase  money  for  the  same,  within  the  time  limited  by  law,  it 
shall  and  may  be  lawful  for  any  person  who  may  have  made  a  sub- 
sequent entry  for  the  said  land,  to  pay  the  purchase  money  into 
the  treasury  and  have  a  grant  perfected,  in  the  same  manner  as  the 

6.  1777,  c.  114,  s.  13. 

7.  1779,  c.  140,  s.  5. 

8.  1777,  c.  114,8.  S. 

9.  1S33,  c.  11. 

10.  ISOa,  C.  759. 

11.  180'fi,  C  r71. 


Chap.  XLIL]      entries  and  grants.  251 

original  enterer  would  have  done,  had  he  not  failed  to  pay  the 
same. 

12.  No  lands  now  entered  on  the  books  of  the  entry  takers  of"iapsrthe"same 
this  State,  or  which  shall  hereafter  be  entered,  and  the  entries  of  person  shall 
which   shall    be   suffered  to   lapse   by  non-payment  of  the   price  ^"^j^^^^^'^gj^g 
thereof,  shall  be  re-entered,  within  twelve  months  after  the  time  at  months, 
which  such  entry  shall   lapse,  by  the   person  or  persons  in  whose 

name  or  names  such  entries  were  made,  but  such  re-entries  shall  be 
utterly  null  and  void. 

13.  The  claimant  of  any  land  shall  produce  to  the  entry  taker  How  entries  to 
a  writins:,  siened  bv  such  claimant,  settins;  forth  where  the   land  ^^  ^^'^f  ^^4 

~'.     ~  '  '  o  _  warrants  to  is- 

shall  be  situated,  the  nearest  water  course,  mountams  and  remark-  sue. 
able  places,  and  such  w.iter  courses  and  remarkable  places  as  may 
be  therein,  the  natural  boundaries  and  lines  of  any  other  person  or 
persons,  if  any,  which  divide  it  from  other  lands  ;  and  every  such 
writing  shall  be  on  one  quarter  sheet  of  paper  at  least,  and  shall  be 
endorsed  by  the  entry  taker  with  the  name  of  the  claimant,  and 
number  of  acres  claimed,  and  date  of  the  entry,  and  a  copy  thereof 
shall  be  entered  in  a  book,  well  bound  and  ruled  with  a  large  mar- 
gin into  spaces  of  equal  distance,  every  space  to  contain  one  entry 
only,  and  every  entry  to  be  made  in  the  order  of  time  in  which  it 
shall  be  received,  and  numbered  in  the  margin  ;  and  the  entry 
taker  shall  deliver  to  the  party  a  copy  of  the  entry  with  its  proper 
number,  and  a  warrant  to  the  surveyor  to  survey  the  same,  which 
warrant  shall  contain  a  copy  of  the  entry  with  its  number  and  date, 
and  shall  be  delivered  to  the  surveyor  in  the  order  of  time  in  which 
the  entry  was  made. 

14.  Every  county  surveyor,   upon  receiving  the  copy  of  the  How  surveys 
entry  and  order  of  survey  for  any  claim  of  lands,  shall,  as  soon  as  l-etuinTd,  ^ 
may  be,  lay  off  and   survey  the  same,  agreeably  to  this   act,  and 

make  thereof  two  fair  plats,  the  scale  whereof  shall  be  mentioned 
on  such  plats,  and  shall  set  down  in  words  the  beginning,  angles, 
distances,  marks  and  water  courses  and  other  remarkable  places, 
crossed  or  touched  by  or  near  to  the  lines  of  such  lands,  and  also 
the  quantity  of  acres  ;  and  shall  transmit  the  plats  to  the  secre* 
tary's  office  or  deliver  them  to  the  claimant,  within  twelve  months, 
together  with  the  warrant  or  order  of  survey,  one  of  which,  with 
the  warrant,  shall  be  filed  by  the  secretary,  and  the  other  annexed 
to  the  grant  ;  and  no  surveys  shall  be  made  without  chain  carriers, 
who  shall  actually  measure  the  land  surveyed,  and  shall  be  paid  by 
the  party  for  whom  the  survey  shall  be  made,  and  such  chain  car- 
riers shall  be  sworn  to  measure  justly  and  truly,  and  to  deliver  a 
true  account  thereof  to  the  surveyor,  which  oath  every  surveyor  is 
hereby  empowered  and  required  to  administer. 

15.  The  surveyor  shall  survey  all  entries  of  land  according  to  Surveys  to  be 
the  priority  of  such  entry,  paying  due   respect  to  the  number  of  ^^?°™i'ig^° 
each  warrant,   and  every  grant  hereafter  to  be   obtained   by  any  ^^y'^  ^ 
subsequent  entry  or  entries,  otherwise   than  is  by  this   enactment 

12.  Amendment. 

13.  1777,  c.  114,  S.  5.— 1733,  C.  185,  S.  U. 

14.  1777,  c.  114,  s.  10. 

15.  1787,  c.  279,  s.  1.  • 


to  issue  war- 
rants. 


252  ENTRIES    AND    GRANTS.         [ChAP.  XLII. 

directed,  shall  be  and  the  same  is  hereby  declared  void  and  of  no 
effect  :  Provided  nevertheless,  that  nothing  herein  contained  shall 
be  construed  to  prevent  any  person,  making  a  subsequent  entry  on 
any  lands,  from  surveying  and  obtaining  a  grant,  as  the  law  directs, 
for  all  such  surplus  land  as  shall  remain,  after  the  enterer  or  enter- 
ers  of  such  land  hath  surveyed  his,  her  or  their  entry  or  entries  as 
aforesaid. 
When  the  ^  6.  When  any  person  has  made  or  shall  hereafter  make  an  entry 

warrant  is  lost,  of  lahds,  as  required  by  law,  which  entry  shall  not  have  become 
issue.^^^^  ^^^  void  by  lapse  of  time,  and  upon  which  the  entry  taker  has  issued 
or  shall  issue  his  warrant  of  survey,  and  the  same  be  lost  by  acci- 
dent, it  shall  be  lawful  for  the  entry  taker,  on  due   proof  being 
made  to  his  satisfaction  by  affidavit  of  the  claimant  or  the  surveyor 
or  deputy  surveyor,  to  issue  a  duplicate  warrant  of  survey  of  the 
same  tenor  and   date,  taking  care  to  set  forth  in  the  face  of  said 
warrant  that  the  same  is  a  duplicate,   in  which  case  such  warrant 
shall  be  as  vahd  and  binding  as  the  original. 
On  the  death,        yj    j^j  gjj  cases  where  an  entry  shall  be  made  in  the  office  of 
taker,  successor  any  entry  taker,  and  such  entry  taker  shall  die  or  resign  before  a 
warrant  shall  be  issued  thereupon,  it  shall  be  the  duty  of  the  suc- 
cessor of  such  entry  taker,  after  being   duly  appointed  and  quali- 
fied, to  issue  a  warrant  upon  such  entry,  in  the  same  manner  as  the 
original  entry  taker  might  have  done,  if  no  vacancy  in  the  office 
had  occurred  :  Provided  nevertheless,  that  nothing  herein  contained 
shall  be  construed  to  authorize   the  issuing  of  warrants  in  cases 
prohibited  by  this  act,  where  the  application  shall  not  be  made  in 
due  time. 
How  entry  18.   If  any  entry  taker  shall  be  desirous  to  make  any  entry  of 

entrieVfor'^^'^^  lands  in  his  own  name,  such  entry  shall  be  made   in  its  proper 
their  own  use.  place,  before  a  justice  of  the  peace  of  the  county,  not  being  a 
surveyor  or  assistant,  which   entry  the  justice  shall  return  to  the 
county  court  at  their  next  sitting,  and  the  county  court  shall  insert 
such  entry  ;  and  every  entry  made  by  or  for  such  entry  taker,  in 
any  other  manner  than  as  herein  directed,  shall  be  illegal  and  void, 
and  any  other  person  may  enter,  survey  and  obtain  a  grant  for  the 
same  land. 
How  surveyors      19.   When  a  county  surveyor  shall  wish  to  have  lands  surveyed, 
madeTorthem-  ^^  ^^^^  county  where  he  acts  as  principal  surveyor,  for  the  purpose 
selves.  of  obtaining  a  grant  to  the  use  of  himself  from  the  State  for  the 

same,  the  county  court  of  said  county  shall  appoint  some  person 
to  make  the  survey,  and  the  entry  taker  of  lands  shall  direct  his 
warrant  of  survey  to  the  person  by  name  authorized  by  this  act  to 
survey  ;  and  all  surveys,  certificates,  and  plats  of  the  same,  done 
in  pursuance  of  this  act,  shall  be  made  under  the  same  regulations 
as  prescribe  the  duty  of  the  county  surveyor  in  similar  cases  ;  and 
no  other  survey  than  is  hereby  authorized  shall  be  necessary  to 
enable  county  surveyors  to  obtain  a  grant  of  land  from  the  State. 

16.  1814,  C.  878,  S.  1. 

17.  1835,  c.  19. 

18.  1777,  c.  114,  s.  17. 

19.  1828,  c.  23,  s.  I. 


Chap.  XLIL]       entries  and  grants.  253 

20.  It  shall  be  part  of  the  official  duty  of  every  entry  taker  to  Entry  takers 
make  return  to  the  secretary  annually,  on  the  first  day  of  Decern-  return^'^to"""-^^ 
ber,  of  all  lands  entered  with  him,  under  a  penalty  of  two  hundred  retary  of  state, 
dollars. 

21.  It  shall  be  the  duty  of  the  secretary  of  state,  and  he  is  Penalty  for 
hereby  required  to  furnish  the  attorney  general,   at  every  spring  be  recOTered  ^'^ 
term  of  the  superior  court  of  Wake  county,  with  a  certificate  of 

failure  in  every  case,  where  any  entry  taker  shall  fail  to  make 
return  agreeably  to  law,  and  it  shall  be  the  duty  of  the  attorney 
general  to  move  for  judgment  against  such  entry  taker  and  his 
securities,  and  it  shall  be  lawful  for  the  court  in  every  such  case 
to  cause  judgment  to  be  entered  accordingly. 

22.  It  shall  be  the  duty  of  the  public  treasurer  to  receive  the  Public  treasurer 
purchase  money  for  vacant  and  unappropriated  lands,  upon  the  g^try  money. 
presentation  to  him  of  the  certificate  of  the  secretary  of  state,  set- 
ting forth  the  number  and  date  of  the  entry,  and  quantity  of  acres 

found  by  the  surveyor  to  be  vacant,  as  the  same  may  appear  to 
exist  by  the  returns  made  to  him  from  the  surveyor,  or  entry 
taker,  or  from  the  entry  taker's  warrant  or  the  plats  of  survey. 

23.  No  grant  shall  issue  on  the  treasurer's  receipt  for  the  pur-  When  the  sec- 
chase  money,  countersigned  by  the  comptroller  ;    but  it  shall  be  sue^^ants^.   ^^' 
the  duty  of  the  comptroller  to  make  out  and  deliver  to  the  secre- 
tary a  certificate,  conformable   to  each  receipt  by  him  counter- 
signed, on  which  the  secretary  is  required  to  issue  the  grant. 

24.  The   secretary  shall,  on  apphcation  of  the  claimant,  make  How  p-ants  to 
out  grants  for  all  surveys  returned  to  his  office,  which  grants  shall  ted. 

be  authenticated  by  the  governor,  countersigned  by  the  secretary 

and  recorded  in  his  office  :  the  date  of  the  entry  shall  be  inserted 

in  every  grant,  and  no  grant  shall  issue  upon  any  survey,  unless 

the  same  be  signed  by  the  surveyor  of  the  county  ;  and  every  per-  All  grants  to 

son   obtaining  a  grant   for  lands   shall,  within  twelve   months  after      registered. 

such  grant  shall  be  perfected  as  aforesaid,  cause  the  same  to  be 

registered  in  the  register's  office  of  the  county  where  the  land  shall 

lie  ;  it  shall  and  maybe  lawful  for  any  person  to  cause  to  be  regis-  Copies  may  be 

tered  in  the  office  of  the  register  of  the  county,  where  the  lands  registered. 

lie,  any  certified  copy  of  a  grant,  from  the  office  of  the  secretary 

of  state,  for  the  lands  lying  in  such  county  ;  and  such  registration 

duly  made  shall  have  the  same  effect  in  law  as  if  the  original  had 

been  registered. 

25.  In  case  of  the  death  of  any  person,  who  heretofore  has  How  the  grant 

1  1111  r  1  r  1        1  T  t  to  issue  on  the 

made  or  shall  hereafter  make  an  entry  of  lands,  pendmg  the  same  death  of  the 
or  before  making  out  the  grant,  the  secretary  shall  issue  the  grant  enterer. 
in  the  name  of  the  decedent  ;  and  those  interested,  either  as  heirs 
at  law,  devisees,  tenants  in  dower  or  by  the   courtesy,  shall  have 
the  same  estate  as  if  the  land  had  been  granted  during  the  life  of 
the  decedent. 

20.  1796,  c.  4.35,  s.  9.— 1821,  c.  1107,  s.  1.— 1833,  c.  15,  s.  2. 

21.  1833,  c.  15,  s.  I. 

22.  1827,  c.  23,  s.  1.— 1829,  c.  30. 

23.  1799,  c.  525,  s.  4 

24.  17S3,  c.  1S5,  s.  14.— 1796,  c.  455,  s.  1.— 1799,  c.  525,  s.  2. 

25.  1715,  c.  4,  s.  6.— 1793,  c.  493,  s.  6. 


254 


ENTRIES    AND    GRANTS.  [ChAP.  XLIL 


When  a  seal  to 
a  grant  is  lost, 
it  may  be  re- 
newecl. 


Certain  grants 
heretofore  is- 
sued to  survey- 
ors, &c.  con- 
firmed. 


Certain  other 
grants  declared 
valid. 


Grants  made 
upon,  entries 
extending  into 
two  or  more 
counties  con- 
firmed. 


How  to  correct 
mistakes  made 
Ijy  surveyors  or 
other  officers  in 
perfecting  titles 
to  land  upon 
entries. 


26.  In  all  cases  where  the  seal  annexed  to  a  grant,  issued  by 
the  State,  is  or  shall  be  lost  or  destroyed,  then  the  governor  for 
the  time  being  may,  on  the  certificate  of  the  secretary  of  state  that 
such  grant  was  fairly  obtained,  cause  the  seal  of  the  State  to  be 
affixed  to  such  grant,  and  the  same  so  affixed  shall  give  the  said 
grant  the  same  validity  as  the  seal  first  affixed  thereto. 

27.  Grants  of  land  heretofore  made  by  the  State  to  surveyors 
and  deputy  surveyors,  upon  surveys,  plats  and  certificates  of  the 
same,  made  by  them  for  themselves  respectively,  without  other 
illegality,  and  without  fraud,  and  without  partiality,  the  certificates 
in  all  cases  being  signed  by  the  principal  surveyor,  are  hereby 
confirmed  and  declared  to  be  good  and  valid,  any  law  to  the  con- 
trary notwithstanding. 

28.  All  grants  issued  by  the  secretary  of  state,  previous  to  the 
year  one  thousand  eight  hundred  and  twenty,  on  surveys  made 
fairly  and  without  fraud,  and  signed  by  the  deputy  surveyors  only, 
shall  be  and  the  same  are  hereby  validated  and  declared  good  and 
effectual  to  pass  all  the  right  of  the  State  in  and  to  said  land, 
in  as  full  and  ample  a  manner  as  if  such  returns  had  been  made  by 
the  surveyors  of  the  respective  counties  :  Provided  nevertheless^ 
that  nothing  herein  contained  shall  affect  any  entries  made  or  grants 
obtained  on  legal  returns  for  such  lands  previous  to  the  year  one 
thousand  eight  hundred  and  twentynine. 

29.  Whereas  many  of  the  citizens  of  the  State,  on  making 
entries  of  lands  near  the  respective  county  lines  wherein  they 
reside,  either  for  want  of  proper  knowledge  of  the  land  laws  of  the 
State  or  not  knowing  the  county  lines,  have  frequently  made 
entries  and  extended  their  surveys  on  such  entries  into  other  coun- 
ties than  those  v/herein  they  were  made,  and  obtained  grants  on 
the  same,  and  whereas  doubts  have  existed  with  respect  to  the 
validity  of  the  titles  to  lands  situated  as  aforesaid,  so  far  as  they 
extend  in  other  counties  than  those  where  the  entries  were  made  ; 
for  remedy  whereof,  Be  it  enacted,  ^c,  That  all  grants  issued  on 
entries  made  for  land  situated  as  aforesaid,  when  the  money  has 
been  paid  into  the  public  treasury,  shall  be  good  and  valid  against 
any  entries,  which  may  be  hereafter  made  or  grants  issued  thereon. 

30.  Whenever  there  has  been  or  hereafter  may  be,  an  error  by  the 
surveyor  in  platting  or  making  out  the  certificate  for  the  secretary's 
office,  or  the  secretary  shall  mistake  in  making  out  the  courses 
agreeably  to  said  returns,  or  misname  the  claimant,  or  make  other 
mistake,  so  as  such  claimant  shajl  be  injured  thereby,  the  claimant 
so  injured  may  prefer  a  petition  to  the  court  of  pleas  and  quarter 
sessions  or  the  superior  court  of  the  county,  in  which  the  land  lies, 
setting  forth  the  injury  which  he,  she  or  they  might  sustain  in  con- 
sequence of  such  error  or  mistake,  with  all  and  singular  the  mat- 
ters and  things  relative  thereto ;  and  the  said  court,  seven  justices 
being  present,  if  the  petition  is  in   the  court  of  pleas  and  quarter 


26.  1807,  C  727. 

27.  1823,  c.  23,  s.  2. 
2?.  1323,  c.  46. 

29..  1805,  c.  675.— 1834,  c.  17. 

3J.  1790,  c.  325.— 1793,  C.  504.— 1804,  c.  655.— 1314,  c.  876. 


Chap.  XLIL]      entries  and  grants.  255 

sessions,  is  hereby  authorized  to  hear  testimony  respecting  the 
truth  of  the  allegations  set  forth  in  the  said  petition  ;  and,  if  it  shall 
appear  to  them  by  said  testimony,  that  from  the  return  of  the  sur- 
veyor or  the  error  of  the  secretary,  the  patentee  of  such  lands  is 
liable  to  be  injured  thereby,  such  court  is  hereby  required  to  di- 
rect their  clerk  to  certify  such  facts  as  appear  to  their  satisfaction 
to  the  secretary  of  state,  who  shall  file  the  same  in  his  office  and 
correct  such  error  in  the  patent,  and  hkewise  on  the  records  of  his 
office,  for  which  he  shall  receive  forty  cents  for  each  and  every 
patent  so  altered,  except  where  the  error  was  committed  by  the 
secretary  ;  the  costs  of  such  suit  shall  be  the  same  as  in  all  other 
civil  suits  originated  in  such  courts,  and  shall  be  paid  by  the  peti- 
tioner, except  when  any  person  may  have  made  himself  a  party  to 
prevent  the  prayer  of  the  petitioner  being  granted,  in  which  case 
the  party  failing  shall  pay  the  costs  as  in  other  suits  at  law ;  the 
benefits  granted  by  these  enactments  to  the  patentees  of  land  shall 
be  extended  in  all  cases  to  persons  claiming  by,  from  or  under 
their  grants  by  descent,  devise  or  purchase.  When  any  error  is 
ordered  to  be  rectified,  and  the  same  has  been  carried  through  from 
the  grant  into  mesne  conveyances,  the  court  making  such  order 
shall  direct  that  a  copy  thereof  be  recorded  in  the  register's  books 
of  the  county  :  Provided,  that  no  petition  to  correct  errors  as  au- 
thorized by  these  enactments  shall  be  brought,  but  within  three 
years  after  the  date  of  the  patent,  alleged  to  be  erroneous  ;  and  if 
any  petition  be  brought  after  the  expiration  of  three  years  from 
such  date,  it  shall  be  the  duty  of  the  court  to  dismiss  the  same, 
and  all  proceedings  had  thereon  shall  be  deemed  null  and  of  no 
efi:ect  :  Jind  provided  also,  that  nothing  in  these  enactments  con- 
tained shall  affect  the  rights  or  interests  of  any  person  claiming  un- 
der a  patent  issued  between  the  period  of  the  date  of  the  grant  al- 
leged to  be  erroneous,  and  the  time  of  filing  the  petition,  unless 
such  person  shall  have  had  due  notice  of  the  filing  of  such  petition, 
by  service  of  a  copy  thereof,  and  an  opportunity  of  defending 
his  rights  before  the  court  according  to  the  course  of  the  common 
law. 

31.   When  any  person  or  persons,  claiming  title  to  lands  in  any  Persons  ag- 
of  the  counties  of  this  State,  under  a  grant  or  patent  from  the  kinglglJ^J!^^^/^^'^ 
of  Great  Britain,  any  of  the  lords   proprietors  of  North   Carolina,  tents,  now  to 
or  from  the   State   of  North   Carohna,  shall  consider  himself  or  P'^°'^'^'^'^' 
themselves  aggrieved   by    any   grant   or  patent  issued   or  made, 
since  the  fourth  day  of  July,  one    thousand  seven   hundred   and  , 

seventysix,  to  any  other  person  against  law  or  obtained  by  false 
suggestions,  surprise  or  fraud,  such  person  so  aggrieved  may  file 
his  petition  in  the  superior  court  of  law  for  the  county  in  which 
such  land  may  lie,  together  with  an  authenticated  copy  of  said 
grant  or  patent,  which  petition  shall  briefly  state  the  grounds 
whereon  such  patent  should  be  repealed  and  vacated  ;  whereupon  a 
writ  of  scire  facias  shall  issue  to  the  grantee,  patentee  or  the  per- 
son, owner  or  claimant  under  such  grant  or  patent,  requiring  such 

31.   1793,  c.  7.     (Iredell's  tevisal.) 


256 


ENTRIES    AND    GRANTS.  [ChAP.  XLIT. 


Proceedings 
and  judgment 
of  the  court  in 
such  cases. 


Copy  to  be 

filed  in  sec- 


grantee,  patentee  or  owner,  to  show  cause  why  such  grant  or  pa- 
tent shall  not  be  repealed  and  vacated. 

32.   The  writ  of  scire  facias  shall  be  considered  the  leading  pro- 
cess, and  all  the  proceedings  thereon  shall  conform  to  the  general 
rules  of  practice  in  such  cases,  except  where  the  scire  facias  cannot 
be  made  known   to  the  defendant,   in  which  case  the  court  shall 
order  publication  in  one  or  more  papers  for  such  time  as  they  may 
think  proper.     If,   upon  verdict  or   demurrer,   the   court  believe 
that  the  patent  or  grant  was  made  against  law,  or  obtained  by  fraud, 
surprise,  or  upon  untrue  suggestions,   they  may  vacate  the  same  ; 
and  a  copy  of  such  judgment,   after  being  entered  at  large  upon 
retary's  office,  record,  shall  be  filed  by  the  petitioner  in  the  secretary's   office, 
where  it  shall  be  recorded  in  a  book  to  be  kept  for  that  purpose  ;  and 
the   secretary  shall,  note  in  the  margin  of  the  original  record  of  the 
grant,  the  entry  of  the  judgment  with  a  reference  to  the  record  in 
his  office. 
Whenever  the        33.   Whenever  it  shall  be  deemed  necessary,  on  the  part  of  the 
re^peaMelterV°  State,  to  institute  proceedings  to  vacate  and  repeal  any  grant  or 
patent  or  grant,  other  letters  patent  for  fraud,  false  suggestions,  or  other  cause,  the 
to^'are^original ^"P"'^™^  court  shall  havc  Original  cognizance  thereof;  and  such 
jurisdiction,      proceedings  shall  be  by  bill  in  equity,  or  information  in  the  nature  of 
a  bill  in  equity,  to  be  exhibited  in  the  name  of  the  attorney  general 
for  the  time  being  on   behalf  of  the   State  ;  and  the  proceedings 
thereupon  shall  be  according  to  the  course  and  practice  in  equity 
causes  in  the  courts  in  this  State. 

34.  When,  upon  the  hearing  of  such  cause,  it  shall  be  ascer- 
tained that  such  grant  or  letters  patent  have  been  obtained  by  fraud, 
or  false  suggestion,  or  against  law  in  any  other  respect,  the  said 
supreme  court  shall  have  full  power,  by  its  decree,  to  declare  the 
same  repealed,  rescinded  and  annulled  ;  and  also  to  take  such 
order  as  the  court  shall  deem  right  and  proper  for  cancelling  the 
enrolment  of  the  same  in  the  office  of  the  secretary  of  state. 

35.  When  any  such  bill  in  equity  or  information  in  nature  there- 
of shall  have  been  already  exhibited  in  any  of  the  superior  courts 

removed  to  the  of  equity,  and  may  now  be  pending  therein,  the  same  shall  at  any 

supreme  court.     .         ^      •"  '       .  r     ■  \  ^^i-i        i  i  ri 

tune,  on  motion  oi  either  party  therem,  be,  by  order  or  the  court 
in  which  the  same  is  pending,  moved  into  the  supreme  court  ;  and 
the  said  supreme  court  shall,  by  such  order  of  removal,  acquire 
w,  and  have  the  same  cognizance  of  the  cause,  as  if  it  had  been  origi- 

nally commenced  in  said  court,  according  to  the  provisions  of  the 
thirtythird  section  of  this  act. 


What  decree 
the  court  may 
make. 


Cases  now  in 
the  superior 
courts  may  be 


Indian  reserva- 
tions not  to  be 
entered. 


56. 


Nothing  in  this  act 


contained  shall  be   so  construed  as  to 


authorize  or  allow  the  entry  of  any  portion  of  the  Cherokee  lands, 
which  were  reserved  or  allotted  to  any  Indian  or  Indians  under  the 
Cherokee  treaties,  which  the  State  has  since  acquired  by  purchase  ; 
and  the  secretary  of  state  is  hereby  directed  to  issue  no  grant  for 


32.  1798,  c.  7.  (Iredell's  revisal.) 

33.  1S30,  c  2,  s.  I. 

34.  1830,  C.  2,  S.  2. 
3.5.  1S30,  C.  2,  s.  3 

35.  1S35   (Amendment.) 


Chap.  XLIIL]  estates.  "161 

any  portion  of  the  lands  of  the  latter  description,  until  the  Gener- 
al Assembly  shall  otherwise  order  and  direct. 

37.  All  entries  of  lands,  for  the  years  one  thousand  eight  hun- rpj^^^gg  ^^j. 
dred  and  thirtythree,  one  thousand  eight  hundred  and  thirtyfour,  ing  on  certain 
and  one  thousand  eight  hundred  and  thirtyfive,  the  purchase  money  g^!"^^  *^^^™ 
for  which  may  become  due  and  payable  on  or  before  the  fifteenth 
day  of  December,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  thirtyseven,  may  be  paid  in,  and  the  payment  of  the 
same  is  hereby  extended  to  the  fifteenth  day  of  December,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  thirty  eight,  and 
on  that  day  shall  be  punctually  paid  ;  any  law  to  the  contrary  not- 
withstanding :  Provided  always,  that  nothing  in  this  section  shall 
be  so  construed  as  to  prejudice  the  priority  of  the  entry  of  land 
by  any  person,  the  payment  of  the  purchase  money  for  which  is 
extended  by  this  section,  but  that  all  such  entries  shall  have  and 
possess  all  the  privileges  and  benefits  of  the  existing  laws,  as  if  the 
purchase  money  had  been  paid  at  the  time  it  became  due,  and  this 
section  had  not  been  passed  :  Provided  also,  that  nothing  in  this 
section  contained  shall  be  construed  so  as  to  interfere  with  any 
other  person  who  has  made  entries  before  the  passage  of  this  act. 

37.  1S36.     (Amendment.) 


Note. —  References  TO  Adjudged  Cases. 

Sect.  1.  Sears  2?s.  Parker,!  Hay.  126.  Seekright  rs.  Bogan,  ib.,  176.  Dickie  t's. 
Hoodenpile,  ib.,  358.  Jones  vs.  Jones,  ib..  48S.  Terrill  vs.  Mooney,  1  Murph.,  401. 
McKenzie  vs.  Hawlet,  N.  C.  Term  R.,  161.  Tatum  vs.  Sawj^er,  2  Hawks,  226.  Tate 
vs.  Greenlee,  ib.,  231.     Ingram  »s.  Threadgill,  3  Dev.  59. 

Sect.  14.  Avery  rs.  Walker,  1  Hawks,  140.  Harris  vs.  Ewing,  1  Dev.  and  Bat. 
Eq  ,  369. 

Sect.  24.  Hunter  I's.  Williams,  1  Hawks,  221.  Van  Pelt  vs.  Pugh,  1  Dev.  and  Bat. 
210. 

Sect.  31.  Terrill  »s.  Logan,  3  Hawks,  319.  McRea  vs.  Alexander,  ib.,  322.  Feath- 
erston  vs.  Mills.  4  Dev.  596.     Crow  vs.  Holland,  ib.,  419. 


CHAPTER  43. 

ESTATES. 

AN  ACT  CONCERNING  ESTATES. 


Section 

1.  Estates   in    tail   converted    into   fee 

simple. 

2.  In  joint  tenancy  the  share  of  a  per- 

son dying  shall  not  go  to  the  sur- 
vivor— Proviso  as  to  partners  in 
trade. 

VOL.  I.  33 


Section 

3.  Certain    contingent    limitations    in 

deeds  or  wills,  how  construed. 

4.  In  conveyances  to  uses,  the  posses- 

sion shall  be  transferred  to  the  use 
without  livery  of  seizin. 

5.  Grantees  of  reversions  to  have  the 


$^. 


258 


ESTATES. 


[Chap.  XLIII. 


Section 

like  advantages  against  the  tenants 
for  life  or  years,  as  the  grantors  had. 

6.  Tenants  for  life  or  years  to  have  like 

advantages  against  the  grantees  of 
reversions,  as  they  had  against  the 
grantcrs. 

7.  The  buying  and   selling  pretended 

rights  or  titles  prohibited. 

8.  What  warranties  shall  be  void. 

9.  What  leases,  made   by  husband  and 

wife,  shall  be  good  against  the  les- 
sors. 


11. 


12. 


Section 
10.  What  leases,  made  by  husband  and 
wife,  shall  not  be  good. 
Tenants   for  life    protected  against 

feigned  recoveries. 
Proviso  for  recoveries  by  good  title. 

13.  Certain  recoveries  by  as.sent  good. 

14.  A  termor  may  falsify  for  his  term, 

15.  Terms  for  years   protected    against 

recoveries. 

16.  Persons  having  lands  by  execution 

protected. 


Estates  in  tail 
converted  into 
fee  simple. 


In  joint  tenancy 
the  share  of  the 
person  dying 
shall  not  go  to 
the  survivor. 


Proviso  as  to 
partners  in 
trade. 


1.  Be  z7  macUd  hy  the  General  Assembhj  of  the  State  of  Jforth 
Carolina,  and  it  is  herekj  enacted  by  the  authority  of  the  same, 
That  any  person  seized  of  an  estate  in  general  or  special  tail, 
whether  by  purchase  or  descent,  shall  be  held  and  deemed  to  be 
seized  of  the  same  in  fee  simple,  fully  and  absolutely  without  any 
condition  or  limitation  whatsoever,  to  him,  his  heirs  and  assigns 
forever,  and  shall  have  full  power  and  authority  to  sell  or  devise  the 
same  as  he  shall  think  proper  ;  and  such  estate  shall  descend  under 
the  same  rules  as  other  estates  in  fee  simple  ;  and  all  sales  and  con- 
veyances, made  bona  fide  and  for  valuable  consideration,  since  the 
first  day  of  January,  in  the  year  of  our  Lord  one  thousand  seven 
hundred  and  seventyseven,  by  any  tenant  in  tail  in  actual  posses- 
sion of  any  real  estate,  where  such  estate  hath  been  conveyed  in 
fee  simple,  shall  be  good  and  effectual  in  law  to  bar  any  tenant  or 
tenants  in  tail  and  tenants  in  remainder,  of  and  from  all  claim  or 
claims,  action  and  actions  and  right  of  entry  whatsoever,  of,  in  and 
to  such  entailed  estate,  against  any  purchaser,  his  heirs  or  assigns 
now  in  actual  possession  of  such  estate,  in  the  same  manner  as  if 
such  tenant  in  tail  had  possessed  the  same  in  fee  simple. 

2-  In  all  estates,  real  or  personal,  held  in  joint  tenancy,  the  part 
or  share  of  any  tenant  dying  shall  not  descend  or  go  to  the  surviv- 
ing tenant  or  tenants,  but  shall  descend  or  be  vested  in  the  heirs, 
executors,  or  administrators,  or  assigns  respectively  of  the  tenant 
so  dying,  in  the  same  manner  as  estates  held  by  tenancy  in  com- 
mon, any  law,  usage  or  custom  to  the  contrary  notwithstanding  : 
Provided  always,  that  estates  held  in  joint  tenancy  for  the  pur- 
pose of  carrying  on  and  promoting  trade  and  commerce,  or  any 
other  useful  work  or  manufacture,  established  and  pursued  with  a 
view  of  profit  to  the  parties  therein  concerned,  shall  be  vested  in 
the  surviving  partner  or  partners,  in  order  to  enable  him  or  them 
to  settle  or  adjust  the  partnership  business,  or  pay  off  the  debts 
which  may  have  been  contracted  in  pursuit  of  the  said  joint  busi- 
ness ;  but  as  soon  as  the  same  shall  be  effected,  the  survivor  or 
survivors  shall  account  with,  and  pay,  and  deliver  to  the  heirs,  ex- 
ecutors, administrators  and  assigns  respectively  of  such  deceased 
partner  or  partners,  all  such  part,  share  and  sums  of  money  as  he 
or  they  may  be  entitled  to   by  virtue  of  the  original  agreement,  if 


1.  1734,  c.  204,  s,  5. 

2.  1784,  c.  204,  s.  6. 


Chap.  XLIIL]  estates.  259 

any,  or  according  to  his  or  their  share  or  part  in  the  joint  concern, 
in  the  same  manner  as  partnership  stock  is  usually  settled  between 
joint  merchants  and  the  representatives  of  their  deceased  partners. 

3.  Every  contingent  hmitation  in  any  deed  or  will,  made  to  de-  Certain  contin- 
pend  upon  the  dying  of  any  person   without  heir  or  heirs  of  the  f^  dllXoT""^^ 
body,  or  without  issue  or  issues  of  the  body,  or  without  children,  wills,  how  Con- 
or offspring,  or  descendant,  or  other  relative,  shall  be  held  and  in-  ®^'^^^'^- 
terpreted  a  limitation  to  take  effect,  when  such  person  shall  die, 

not  having  such  heir,  or  issue,  or  child,  or  offspring,  or  descendant, 
or  other  relative  (as  the  case  may  be)  living  at  the  time  of  his 
death,  or  born  to  him  within  ten  months  thereafter,  unless  the  in- 
tention of  such  limitation  be  otherwise,  and  expressly  and  plainly 
declared  in  the  face  of  the  deed  or  will  creating  it  :  Provided,  that 
the  rule  of  construction  contained  in  this  section  shall  not  extend 
to  any  deed  or  will  made  and  executed  before  the  fifteenth  of  Jan- 
uary, one  thousand  eight  hundred  and  twenty  eight. 

4.  By   deed  of  bargain  and  sale,    or  by  deeds  of  lease  and  la  conveyances 
release,  or  by  covenant  to  stand  seized  to  use,  or  deed  operating  the  possession 
by  way  of  covenant  to  stand  seized  to  use,  the  possession  of  the  shall  be  trans- 
bargainor,  releasor  or  covenantor  shall  be  deemed  heretofore  to  use  without 
have  been  and  hereafter  to  be   transferred  to  the  bargainee,  re-^i^ery  «>f  seizin. 
leasee,   or  person  entitled  to  the  use,  for  the  estate   or  interest 

which  such  person  hath  or  shall  have  in  the  use,  as  perfectly  as  if 
the  bargainee,  releasee  or  person  entitled  to  the  use  had  been 
enfeoffed  with  livery  of  seizin  of  the  land,  intended  to  be  conveyed 
by  such  deed  or  covenant. 

5.  Whenever  a  grant  or  lease  shall  be  made,  by  any  person  or  *^''^'?'^^®^  °f '■^- 

..  '      */      ^  J    1  vsrsions  to  n&vc 

persons   or  body  politic   or  corporate,  of  any  reversion  in  lands,  the  like  advan- 
rents,  tenements  or  hereditaments,  which  lands,  rents,  tenements  'f^^®  against 

,  T  ,         .  c         1  1     11  1       1     I  1     1      the  tenants  for 

or  hereditaments  at  the  time  oi  such  conveyance  shall  oe  held,  by  life  or  years,  as 
any  other  person  or  persons,  body  pohtic  or  corporate,  for  a  term^'^^^'"^'^^°'"® 
of  life  or  lives  or  for  a  term  of  years,  such  grantee  or  grantees, 
lessee  or  lessees,  their  heirs,  executors,  administrators,  successors 
and  assigns,  shall  have  the  like  advantages  against  the  tenant  for  life 
or  lives  and  against  the  tenant  for  years,  their  executors,  adminis- 
trators, successors  and  assigns,  by  entry  for  non-payment  of  rent 
and  for  doing  of  waste,  and  the  same  benefit  and  advantage  and 
remedies  by  action  for  the  not  performing  of  other  conditions, 
covenants  or  agreements,  contained  and  expressed  in  the  inden- 
tures, by  which  said  tenants  for  Hfe  or  lives  or  the  said  tenants  for 
years  hold  the  same  lands,  tenements,  rents  or  hereditaments, 
against  said  tenants  for  life  or  lives  and  against  said  tenants  for 
years,  their  executors,  administrators,  successors  and  assigns,  as 
the  grantors  or  lessors  themselves  or  their  heirs  or  successors 
ought  or  might  have. 


6.  All  lessees  and  grantees  of  lands,  rents,  tenements  and  Tenants  for 
hereditaments  for  term  of  years,  life  or  lives,  their  executors,  j,'a^,°^^e7id 
administrators,  successors  and  assigns,   shall  and   may  have  like  vantages 


3.  IS27,  c.  7. 

4.  27  Hen.  S,  c.  10. 

0.  32  Hen.  8,  c.  34,  s.  \. 

6.  32  Hen.  8,  c.  34,  s.  2. 


--3: 


260 


ESTATES. 


[Chap.  XLIII. 


versions,  as 
they  had 
against  the 
grantors. 


ited. 


against  the  actioii  and  advantage  and  remedy  against  every  person  and  persons, 
grantees  of  re-  ]3odies  politic  and  Corporate,  their  heirs,  successors  and  assigns, 
which  have  or  shall  have  any  gift  or  grant  from  any  person  or  per- 
sons of  the  reversion  of  the  same  lands,  rents,  tenements  and 
hereditaments  so  letten  or  any  parcel  thereof,  for  any  condition, 
covenant  or  agreement  contained  or  expressed  in  the  indenture  of 
their  lease  and  leases,  as  the  same  lessees  or  any  of  them  might 
and  should  have  had  against  the  said  lessors  and  grantors,  their 
heirs  and  successors. 
The  buying  and  7.  No  person  shall  buy,  sell  or  obtain  any  pretended  right  or 
sellm^pretend-  ^jj-jg    Qy.  ^gj^g  promise   or  Covenant  to  have  any  rio:ht   or  title  of 

ed  rights  or        "^        '  .   r  jo 

titles  prolub-  any  person,  m  or  to  any  lands  or  tenements,  (except  such  person  . 
as  shall  sell,  covenant  or  promise  the  same,  or  they  by  whom  they 
claim,  have  been  in  possession  of  the  same  or  of  the  reversion  or 
remainder  thereof,  or  taken  the  rents  and  profits  thereof  one  year 
next  before  the  bargain  made,)  upon  pain  that  he  that  shall  make 
any  such  sale,  promise,  covenant  or  grant,  shall  forfeit  the  whole 
value  of  the  lands  so  bargained,  sold,  covenanted  or  agreed  to  be 
sold  or  granted,  and  the  buyer,  knowing  the  same,  shall  forfeit 
also  the  value  of  the  said  lands,  the  one  half  to  the  use  of  the 
county  where  the  lands  are  situated,  the  other  half  to  the  person 
suing  for  the  same  :  Provided,  it  shall  be  lawful  for  any  person, 
being  in  the  lawful  possession,  by  taking  the  rents  and  profits  of 
any  tenements,  to  buy  the  pretended  right  of  any  other  person  to 
such  tenements. 

8.  All  warranties,  which  shall  be  made  by  any  tenant  for  life  of 
any  lands,  tenements  or  hereditaments,  the  same  descending  or 
coming  to  any  person  in  reversion  or  remainder,  shall  be  void  and 
of  no  effect  ;  and  likewise  all  collateral  warranties  of  any  lands, 
tenements  or  hereditaments  by  any  ancestor,  who  has  no  estate  of 
inheritance  in  possession  in  the  same,  shall  be  void  against  his 
heirs. 

9.  All  leases  made  of  any  lands,  tenements  or  hereditaments, 
made  ^Y^"^^^  by  Writing  indented  or  deed  poll,  for  term  of  years  or  for  life,  by 
shall  be  good  any  person  of  full  age  having  any  estate  of  inheritance  in  fee  simple 
against  the  les-  j^  ^j^^g  gQ^g^  jj^  their  own  right  or  in  right  of  their  wives  or  jointly 

with  their  wives,  shall  be  good  in  law  against  the  lessors,  their 
wives  and  their  heirs  and  every  of  them  :  Provided  the  wife  be 
made  party  to  such  deed  of  lease  made  by  her  husband  of  any 
lands,  tenements  or  hereditaments,  being  the  inheritance  of  the 
wife,  she  being  thereto  privily  examined  according  to  law,  and 
that  every  such  lease  be  made  by  indenture  in  the  name  of  the 
husband  and  wife,  and  she  to  seal  the  same,  and  that  the  rent  be 
reserved  to  the  husband  and  wife,  and  to  the  heirs  of  the  wife 
according  to  her  estate,  and  that  the  husband  shall  not  alien  the 
rents  longer  than  during  the  coverture. 

10.  The  above  section  shall  not  extend  to  any  grant  of  any 


What  warran- 
ties shall  be 
void. 


What  leases 


What  leases 
made  by  hua- 


7.  32  Hen.  S,  c.  9,  s.  2  and  4. 
S.  4  Amie,  c.  le,  s.  21. 
9.  33  rfen.  a,  c.  2Sj  s.  1  and  3- 
10.  32  Hen.  8,  c.  23,  s.  2. 


Chap.  XLIII.]  estates.  261 

reversion,  nor  to  any  lease  to  be    made  without  impeachment  of  band  and  wife 
waste,  nor  to  any  lease  to  be  made  above  the  number  of  twenty-  ^J^f^  °°^  ^^ 
one  years  or  three  lives  from  the  making  thereof,  and  every  per- 
son to  whom  the  reversion  of  such  lands,  tenements  and  heredita- 
ments shall  appertain,  after  the  death  of  such  lessors,  shall  have 
the  like  remedy  against  the  lessees  as  the  lessor  might  have  had. 

11.  Where  persons  are  seized  of  lands,  as  tenants  by  the  cour- Tenants  for 
tesy,  or  otherwise  for  term  of  life,  or  of  estates  determinable  upon  ^^'®  .P™*®'=.^^'^  , 
life,  all  recoveries,  by  agreement  of  parties  or  by  covin,  against  recoveries." 
any  such  particular  tenant,  shall  as  against  such  person,  to  whom 

any  reversion  or  remainder  appertains,  be  void. 

12.  The  above  section  shall  not  be   prejudicial  to  any  person  Proviso  for  re- 
that  shall  by  good  title  recover  lands  by  any  former  title.  "^ood^title^ 

13.  All  recoveries  of  land  by  assent   of  any  person,  to  whom  Qgj.jj^'jj  j.^^^^, 
any  reversion  or  remainder  thereof  shall   appertain,    (so  that  the  eries  by  assent, 
same  assent  appear  of  record  in  any  court,)  shall  be  in  like  force  ^°°  " 
against  such  persons  as  shall  assent  as  heretofore. 

14.  A  termor  may  falsify,  for  his  term,  recoveries  in  such  wise  a  termormay 
as  a  tenant  of  the  freehold  may.  falsify  for  his 

•  ■  tGrm. 

15.  The  termors,  notwithstanding  such  recovery,  shall  enjoy -pgj.j^gfpj.g 
their  terras,  according  to  their  leases,  against  all  such  recoveries  ;  protected 
and  such  recoverors,  and  their  heirs  and  assigns,  shall  have  like  gl^g*^^' ^'*^'^°^' 
remedy  against  the   termors,  their  executors,  administrators  and 

assigns,  by  action  of  debt  for  the  rents  and  services  reserved,  and 
also  like  actions  of  waste  done  after  the  recoveries  had,  as  the 
lessors  might. 

16.  All  persons   having  lands    by  execution   shall    have    like  Person  having 
remedy  to  falsify  recoveries  as  is  provided  for  lessees  for  years,     icmfon  pro- 
tected. 

11.  14  Eliz.  c.  8,  s.  2. 

12.  14  Eliz.  c.  8,  s.  3. 

13.  14  Eliz.  c.  S,  s.  4.  , 

14.  21   Hen.  8,  c.  15,  s.  2. 

15.  21  Hen.  8,  c.  15,  s.  3. 

16.  21  Hen.  8,  c.  15,  s.  4. 


Note  —  References  to  Adjudged  Case.?. 

Sect.  1.  Minge  vs.  Gilmore,  1  Hay.  279,  Car.  L.  Rep.     Wells  vs.  Nevirhold,  Tay. 
166. 


262  EVIDENCE  IN  CERTAIN  CASES.   [ChAP    XLIV. 

CHAPTER  44. 

EVIDENCE  IN  CERTAIN  CASES. 


/ 

AN   ACT   PRESCRIBING  WHAT   SHALL   BE  EVIDENCE   IN   CERTAIN 

CASES.  ,        ^  , 


Section 

1.  Evidence  necessary  to  support  title 

under  H.  E.  McCulloch. 

2.  Grant  from  the  proprietors,  or  a  copy 

thereof  in  titles  under  H.  E.  Mc- 
Culloch, sutficient  evidence  without 
producina:  the  grant  to  the  proprie- 
tors. 

3.  What  shall  be  evidence  of  the  law  of 

another  state. 

4.  Printed   statute    book,   evidence    of 

private  acts. 


Section 

5.  Other  evidence  of  private  acts. 

6.  Copies  from  the  secretary's  oiRce,  of 

plats   of    survey,   may  be  read  as 
evidence. 

7.  What   shall  be  evidence  of  admin- 

istration and  of  returns  of  admin- 
istrators in  other  states. 

8.  Certified    copies   of  wills   or  deeds 

from  other  states  to  be  received  in 
evidence. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JSCorth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
Evidence  ne-  That  in  all  actioiis  and  suits  at  law  or  in  equity,  wherein  it  may  be 
porrtitle^unXr  necessary  for  either  party  to  prove  title,  by  virtue  of  a  grant  or 
H.  E.  McCul-  grants  made  by  the  king  of  Great  Britain  or  Earl  Granville  to 
^°^^-  Henry  McCulloch,  or   Henry   Eustace  McCulloch,    it   shall  be 

held  sufficient  for  such  party,  in  the  usual  manner,  to  give  evi- 
dence of  the  grant  or  conveyance  from  the  king  of  Great  Britain 
or  Earl  Granville,   to  the   said  Henry  McCulloch  or  Henry  Eus- 
tace McCulloch,  and   the  mesne  conveyances  thereafter,  without 
giving  any  evidence  of  the  deed  or  deeds  of  release,  relinquish- 
ment or  confirmation  of  Earl  Granville  to  the  said  Henry  McCul- 
loch or  Henry  Eustace  Culloch,  or  of  the  power  or  powers  of 
attorney,  by  which  the  conveyances  from  the  said  Henry  McCul- 
loch or  Henry  Eustace  McCulloch  purport  to  have  been  made. 
Grant  from  the      2.   In  all  trials  at  law,  where  the  title  of  either  plaintiff  or  de- 
?o''?4he°reonnfendant  shall  be  derived  from  Henry  Eustace  McCulloch  or  Hen- 
titles  under  H.  ry  McCulloch,  out  of  their  tracts  number  one  and  three,  it  shall  not 
Efficient  ev-     ^^  required  of  such  party  to  produce,  in  support  of  his  title,  either 
idence  without  the  Original  grant  from  the  crown  to  the  proprietors,  or  a  register- 
grani'to'the  ^   ^^  copy  thereof,  but  in  all  such  cases  the  grant  or  deed  executed 
proprietors.      by  such  reputed  proprietors  or  by  his,  her  or  their  lawful  attorney, 
or  a  certified  copy  thereof,  shall  be  deemed  and  held  legal  and  suf- 
ficient proof  of  the  title  of  such  proprietors,  in  as  full  and  absolute 
manner,  as  though  the  said  original  grants  were  produced  and  giv- 
en in  evidence. 

1.  I8J9,  C.  1021. 

2.  1807,  c.  724. 


Chap.  XLIV.]  evidence  in  certain  cases.  263 


•    3.  In  all  suits,  wherein  it  may  be  necessary  for  the  decision  of  what  shall  be 
the  case  to  produce  in  evidence  the  law  of  any  of  our  sister  states,  law  of^another 
it  shall   and  may  be   lawful  for   either   party  to  produce  in  court  state. 
a   copy    of  the   law    of  such  state,    drawn    oft  by  the  secretary 
of  our  state,  from  the  copy  of  the  laws  of  our  sister  state,  depos- 
ited in  his  or  the  executive   office,   certified  under  his  hand  with 
the  seal  of  the  State  of  North  Carolina  attached,  and   it  shall  be 
his  duty  to  furnish  said  copy  when  required  ;  and  such  copy  thus 
attested  shall  be  held  and  deemed  sufficient  evidence  of  the  exis- 
tence of  such  law. 

4.  All  private  acts,  which  have  been  or  may  hereafter  be  passed  Printed  statute 
by  the  General  Assembly  and  printed  by  the  printer  of  the  State,  orprivat^acrs. 
shall  and  may  be  read  in  evidence,  in  all  cases  and  in  all  courts  of 

this  State,  from  the  printed  statute  book. 

5.  Any  of  the  private  acts,  heretofore  passed  and  pubhshed  by  ^tber  evidence 
Francis  X.  Martin,  in  his  collection  of  private  acts,  shall  and  may  °  P"vaeacs. 
be  read  in  evidence  from  said  collection,  or  a  copy  of  any  private 

act  certified  by  the  secretary  of  state  shall  likewise  be  received  in 
evidence,  in  any  of  the  courts  aforesaid. 

6.  Copies  of  the  plats    and   certificates  of  survey  or  their  ac- Copies  from 
companying  warrants,  wdiich  are  or  may  be  filed  in  the  secretary's  ^^  secretary's 
office,  when  certified  as  true  copies  from  under  the  hand  of  the  of  survey  may 
secretary,  shall  be  as  good  evidence  in  any  court  of  record  in  this  K^  ^^^'^  ^^  ^^' 
State  as  the  original. 

7.  When    an   administration   on   the  goods   and  chattels  of  any  what  shall  be 
person   deceased,  being   an   inhabitant  in  another  state,  has  been  ^^'^^g^J^^jf/jj^'^' 
granted,  or  a  return  or  inventory  of  the   estate   has  been  made,  a  and  of  returns 
copy  of  the   record  of  administration  or  of  letters  of  the   same,  xLsfnolher' 
and  a  copy  of  the  inventory  or  return  of  the  effects  of  the  deceas-  states. 

ed,  after  the  same  has  been  granted  or  made  agreeably  to  the  laws 
of  the  state,  where  the  same  has  been  done,  being  properly  certi- 
fied, either  according  to  the  act  of  congress  passed  in  May,  A. 
D.  one  thousand  seven  hundred  and  ninety,  or  by  the  proper  offi- 
cers of  the  said  state,  and  the  further  testimonial  of  the  governor 
or  commander-in-chief  that  the  person  certifying  is  the  proper  offi- 
cer or  duly  authorized  by  law,  shall  be  allowed  to  be  read  as  evi- 
dence in  the  courts  of  this  State,  and  shall  be  admitted  in  the 
same  manner  as  a  copy  from  any  of  the  clerk's  offices  in  this 
State. 

8.  In  cases  where  inhabitants  of  other  states,  by  will  or  deed,  certified  copies 
devise  or  convey  property  situated  in  this   State,  and  the  original  of  ^ills  or 
will  or  deed  cannot  be  obtained,  to   register  in  the  county  where  ot^her%ta°Ts  to 
the  land  lies,  or  where  the  property  shall  be  in  dispute,  a  copy  of  i^'e. received  as 
the  said  will  or  deed  (after  the  same  has  been  proved  and  register- 
ed or  deposited,  agreeably  to  the  laws  of  the  state  where  the  per- 
sons died  or  made  the  same,)   being  properly  certified,   either  ac- 

3.  1823,  c.  1193,  s.  1,  3. 

4.  1826,  c.  7,s.  1. 

5.  1826,  c.  7,  s.  2. 

6.  1822,  c.  1154. 

7.  1834,  c.  4.       ■ 

8.  1802,  c.  623. 


264 


EXECUTIONS. 


[Chap.  XLV. 


cording  to  the  act  of  congress  passed  in  May,  one  thousand  seven 
hundred  and  ninety,  or  by  the  proper  officer  of  the  said  state,  and 
the  further  testimonial  of  the  governor  or  commander-in-chief  of 
said  state  that  the  person  certifying  is  the  proper  officer  or  duly 
authorized  by  law,  in  such  case  the  said  copy  shall  be  read  as  evi- 
dence in  the  courts  of  this  State,  and  shall  be  admitted  in  the  same 
manner  as  a  copy  from  any  of  the  register's  or  clerk's  offices 
therein. 


Note — ■Refehences  to  Adjudged  Cases. 


Sect.  3.  State  vs.  Jackson,  2  Dev.  563. 
Sect.  8,  Knight  vs.  Wall,  2  Dev.  and  Bat. 


CHAPTER  45. 


EXECUTIONS. 


AN  ACT  CONCERNING  EXECUTIONS  AND  EXECUTION  SALES. 


Section 


1. 


2. 


3. 


4. 


5. 


Houses,  lands  and  other  heredita- 
ments may  be  taken  in  execution. 

All  process  of  execution  to  issue 
against  lands  and  tenements,  as 
well  as  goods  and  chattels,  though 
the  latter  are  to  be  first  taken. 

Sheriff  may  deliver  goods,  and  one 
half  of  the  lands  of  the  debtor  to 
the  plaintiff,  until  the  debt  or  dam- 
ages he  levied,  &c. 

Execution  maybe  levied  upon  goods, 
lands,  ifec.  held  in  trust  for  the 
person  against  whom  the  execution 
issued — Purchaser  under  such  exe- 
cution, to  hold  the  property  dis- 
charged of  the  trust. 

The  equity  of  redemption  and  the 
legal  right  of  redemption  in  lands, 
liable  to  execution. 

Sheriff  to  set  forth  in  his  deed  that 
the  land  was  under  mortgage. 

What  articles  shall  be  exempt  from 
execution. 

When  justices'  execution  shall  be 
levied  on  land  and  returned  to 
court,  what  to  be  done. 

■Where    the   sale   of  the   land  does 


10. 


11. 


12. 


Section 

not  satisfy  the  judgment  and  costs, 
the  court  to  grant  execution  for  the 
balance. 

How  and  where  sales  of  land  and 
slaves  under  execution  shall  be 
made. 

County  court  may  appoint  addition- 
al places  of  public  sale. 
Sheriff  or  other  officer  to  give  notice 
of  the  sale  of  land,  &x;.  under  exe- 
cution— How  and  for  what  length 
of   time    advertisement    shall    be 
made. 
13.  At  what  time  of  the  day  execution 
sales  shall  commence. 
Penalty  on  sheriff,  &c.  for  selling 
contrary  to  this  act. 
Sheriff,  &c.  returning  no  sale  for 
want  of  bidders,  how  to  proceed. 
Justices'  execution  to  bind  personal 
property  only  from  its  levy. 

17.  Sheriff  or  other  officer  may  take 
bond  for  the  forthcoming  of  property 
levied  on. 

18.  Officer  how  to  proceed  upon  such 
bond  when  broken. 

19.  Officer  levying  a   justices'   execu- 


14. 


16. 


Chap.  XLV.]  executions.  265 


Section 

tion  on  land  to  give  the  defendant 
five  days  notice  before  court — Court 
to  direct  a  notice  where  none  has 
been  given. 

20.  County  court  to  settle  the  charges 
of  officers  for  keeping  horses,  &c, 
taken  in  execution. 

21.  Officer  to  make  out  his  account  for 
keeping  horses.  &c.  and  to  deliver 
the  debtor  a  copy  thereof,  and  re- 
turn the  account  with  the  execu- 
tion. 


Section 

32.  Purchaser  under  execution  may  sue 
the  defendant  in  the  execution,  if 
there  be  a  defect  in  the  title  to  the 
thing  sold. 

23.  A  party,  at  whose  suit  any  person 
rnay  be  charged  in  execution,  may, 
after  the  death  of  such  person  in 
execution,  have  a  new  execution 
against  the  land  and  goods  of  the 
deceased. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  ofJ^orth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

That  the  houses,  lands,  and  other  hereditaments,  and  real  estate,  Houses,  lands 

...  .  .  3.HCI  otncr  ncr- 

situate  and  being  within  this  State,  belonging  to  any  person  indebt-  editaments 
ed,  shall  be  liable  to  and  chargeable  with  all  iust  debts,  duties  andP^y^'^^^™ 

.  •  111  cxGcution. 

demands,  of  what  nature  or  kind  soever,  owing  by  such  person, 
and  shall  be  subject  to  the  like  remedies,  proceedings  and  process 
in  any  court  of  law  or  equity,  for  seizing,  extending,  selhng  or  dis- 
posing of  the  same  towards  the  satisfaction  of  such  debts,  duties 
and  demands,  as  personal  estates  in  this  State  are  seized,  extend- 
ed, sold  or  disposed  of  in  satisfaction  of  debts. 

2.  All  process  of  execution   shall  issue  against  lands  and  tene-  All  process  of 
ments,  as  well  as  goods  and  chattels,  and  when  any  such  execution  g^g'^^^^^°|Jg'°  ^^' 
shall  come  to  the  hands  of  the  sheriff,  he  shall  proceed  to  levy  the  lands  and  ten- 
same  upon  the  goods  and  chattels   of  the  defendant  in  the   first  arioods^anr^^ 
instance,  if  any  there  be  ;  but  if  to  the  best  of  his  knowledge  there  chattels; 

be  no  such  goods  or  chattels,  or  not  sufficient  to  answer  the  plain-  te°afe  tobe^  ' 

tiff's  demand,  he  shall  execute  the  same  upon  the  lands  and  tene- first  taken. 

ments,  to  the  amount  of  the  whole  debt,   or  of  so  much  as   may 

remain  more  than  the  value  of  the  goods  and  chattels   so  found, 

and  such  lands  and  tenements  shall  be  liable,  under  the  restrictions 

aforesaid,  to  be  sold  to  satisfy  the  plaintiff's  judgment ;  and  when 

any  sheriff  shall  have  levied  process   upon  lands  and  tenements  in 

manner  aforesaid,   he   shall  not  proceed   to  sell  the  same,  until  in 

the  most  public  place  in  his  county,  he  shall  advertise  the  same  at 

least  forty  days. 

3.  When   a  debt  is  recovered  or  acknowledged  in  any  of  said  Sheriff  may  de- 
courts,   or   damages  awarded,  it  shall  be  in  the  election  of  the  ^'^^^^^^""^g'jf  ^f 
plaintiff  in  the  action  to  have  a  writ  o{  fieri  facias  to  the  sheriff  to  the  land  of  the 
levy  the  debt  or  damages  of  the  lands  and  goods,  or  that  the  sheriff  pi^^j^^^-j^°Jj|^-^ 
shall  deliver  to  him  all  the  chattels  of  the  debtor   (those  excepted  the  debt  or 
which  are  hereinafter  exempted  from  execution)  and  the  one  half  ^^^^^*^|^^,_^ 

of  his  land,  until  the  debt  or  damages  be  levied,  upon  a  reasonable 
extent  or  price.  And  if  the  plaintiff,  after  being  so  put  into  pos- 
session of  the  said  land  of  the  debtor,  shall  be  dispossessed  there- 

1.  5  Geo.  2,  c.  7,  s.  4.— 1777,  c.  115,  s.  29. 

2.  1777,  c.  115,  s.  29. 

3.  13  Edw.  1,  c.  18. 

VOL.  I.  34 


266  EXECUTIONS.  [Chap.  XLV. 

of,  he  shall  have  his   action  to  recover  possession  thereof,    and 
also  to  recover  such  damages  as  he  may  have  sustained. 
Executions  4.   It  shall  and  raaj  be  lawful  for  any  sheriff  or  other  officer,  to 

may  be  levied   whom  any  writ  or  precept  shall  be  directed  at  the  suit  of  any  per- 
"aiidsf&c.^eld  soi^  o^  persons  for  or  upon  any  judgment,  to  do,  make  or  declare 
in  trust  for  the  execution  unto  the  party  in  that  behalf  suing  of  all  such  goods  and 
whom  thl'^ex-   chattels,  lands,  tenements,   rents  and  other  hereditaments,   as  any 
ecution  issued,  other  person  or  persons  be  in  any  manner  or  wise  seized  or  pos- 
sessed or  hereafter  shall  be  seized  or  possessed  of  in  trust  for  him, 
her  or  them   against  whom  execution  shall  be   so   issued,   as  the 
sheriff  or  other  officer  might  or  ought  to  have  done,  if  the   said 
party  or  parties,  against  whom  execution  hereafter  shall  be  issued, 
had  been  seized  or  possessed  of  such  goods  and  chattels,  lands  and 
tenements,  rents   or  other  hereditaments,  of  such  estate  as  they  be. 
seized  or  possessed  of,  in  trust  for  him,  her  or  them,  at  the  time 
Purchaser  un-   Qf  ^j^g  g^^j^j  execution  sucd,   wliich  goods   and  chattels,  lands  and 

Q6r  SUCil  6XGCU-  '  <D  * 

tion  to  hold  the  tenements,  rents  or  other  hereditaments,  by  force  and  virtue  of 
^h°re![onhe  ^"^^^  execution,  shall  accordingly  be  held  and  enjoyed,  freed  and 
trust.  discharged  from  all  incumbrances  of  such  person  or  persons,  so 

seized    or    possessed  in    trust  for  the  person  or  persons  against 

whom  such  execution  shall  be  sued. 
The  equity  of        5.   The  equity  of  redemption,  and  the  legal  right  of  redemption, 
the'legal'rit^ht'^  ^"  ^  lands,  tenements,   rents   or   other  hereditaments,  which  now 
of  redemptfon   are  or  hereafter  shall  be  pledged  or  mortgaged,  shall  in  like  man- 
to  execution'^^^  ^^"^  ^®  liable  to  any  execution  or  executions  hereafter  sued  out,  or 

any  judgment  or  judgments  now  had,   or  which  hereafter  shall  be 

had  against  the  mortgagor  or  mortgagors. 
Sheriff  to  set         6.   It  shall  be  the  duty  of  the  sheriff,  selling  any  such  lands,  ten- 
deed  that  Ae     ements,  rents  or  other  hereditaments  under  any  execution  to  him 
land  was  under  directed,  to  Set  forth  in  the  deed  to  be   made  by  him  to  the    pur- 
mortgage.        chaser  or  purchasers  thereof,  that  the  same  lands,  tenements  and 

hereditaments  were  under  mortgage  at  the  time  of  the  levy  on  and 

sale  of  the  same, 
vvhat  articles        7,   Jn  all  executions  against  the  goods  and  chattels,  the  wearing 

shall  be  exempt  ,  ,.  -.       °   ^  ^"  iiiz-v 

from  execution.  appsTcl,  workmg  tools,  and  arms  tor  muster,  one  bed  and  furniture, 
one  wheel  and  cards,  and  one  loom,  one  bible  and  testament,  one 
hymn  book,  and  one  prayer  book  and  all  necessary    school  books,, 
the  property  of  the  defendant,  shall  be  deemed  and  held   exempt 
from  seizure. 
When  justice's       8.  When  any  justice's  execution    shall  be    levied  on  the  lands 
bTlevied  on^    ^"^^  tenements  of  any  person  or  persons  and    returned  to    court 
land  and  re-      agreeably  to  law,  it  shall  be  the  duty  of  the  court,  upon  application 
what  to°br"^^' of  the  plaintiff  therein   named,    to  enter  up  a  judgment   for  the 
done.  amount  of  said  recovery  and  costs. 

Where  the  sale      9.   If  by  the  sale  of  the  lands,  so  levied   on    and    returned    to 
does  not  satisfy  court,  a  sufficient  sum  shall  not  be  produced  to  satisfy  the  judgment 

4.  1812,  c.  S30,  s.  1. 

5.  1812,  c.  830,  S.  2.— 1822,  c,  1172. 

6.  1812,  c.  aao,  s.  3.— 1822,  c.  1172. 

7.  1773,  c.  100,  S.  1.— 1808,  c.  746,  s.  2.— 1810,  c.  797.-1830,  C.  33. 
S.  1822,  C.  1138,8.  1. 

9.  1322,  c.  1138,9.  2. 


Chap.  XLV.]  executions,  267 

and  costs,  the  plaintiff  is  hereby  authorized  to  sue  out  an  execu-  the  judgment 
tion  from  the  court  for  the  residue  thereof,  in  the  same  way  and  ^"^j.j^°J|!^^5^ 
under  the  same  rules  and  regulations  as  if  the  judgment  had  been  execution  for 
originally  rendered  by  said  court.  ^  ^  ^^^'^^' 

10.  All  sales  of  lands  or  slaves  made    by    any  sheriff,  coroner.  How  and 
constable  or  by  any  clerk  and  master  in  equity,  under    any  execu-  where  sales  of 
tion  or  decree,  shall  be  made  at  the  court  house  of  their  respective  under  execution 
counties,  and  such  sales  shall  be  made  on  the   same    Monday  in  shall  be  nuide. 
each  and  every  month  on   which  the  several    courts  of  pleas   and    , 
quarter  sessions  are  generally  held  for  their  respective    counties, 

always  making  the  Monday  of  each  county  court  the  only  sale  day 
in  that  month,  and  if  on  any  sale  day  as  aforesaid,  the  whole  of  the 
property  taken  by  virtue  of  an  execution,  or  if  property  levied  on 
under  other  executions  cannot  be  offered,  by  reason  that  the  sale 
first  commenced  is  not  completed  for  want  of  time,  or  cannot  be 
sold  on  the  same  day,  the  sheriff,  constable,  or  other  pubhc  officer 
shall  be  authorized  to  postpone  the  same  from  day  to  day  until  the 
whole  shall  be  sold,  on  giving  public  notice  at  the  court  house  that  . 
such  sale  will  be  continued  on  the  ensuing  day,  and  all  such  sales 
shall  commence  between  the  hours  of  eleven  and  four  o'clock  on 
such  sale  day  :  Provided,  nevertheless,  that  nothing  herein  con- 
tained shall  be  construed  to  alter  in  any  manner  the  rules  and  restric- 
tions, under  which  sales  are  by  law  directed  to  be  conducted  and 
executions  required  to  be  returned  :  Jlnd  provided  further,  that 
nothing  in  this  section  shall  be  construed  to  alter  the  days  of  sale 
in  particular  counties  as  now  established  by  law. 

11.  The  several  courts  of  pleas  and  quarter  sessions  shall  have  ^°""^^  ^°"'"'' 

r  11  11-  /        ^-      •  i-     1  •  •        •  1     •       may  appoint 

lull  power  and  authority,  (a  majority  of  the    acting  justices  being  additional 
present)  to  establish  additional  places  of  pubhc  sale    in  their  res- |^|f g2e°^  ^"^' 
pective  counties. 

12.  No  sheriff,  constable,  or  other  officer,  shall   sell    any   real  Sheriff  or  other 
estate,  equity  of  redemption  or  legal  right   of  redemption    of  any  "o^^^e  of^the 
real  estate,  until  he  shall  have  advertised  the  same    at   least   forty  sale  of  land, 
days  previous  thereto,  in  three    pubhc  places    in    his    county,  nor  ecutira.^'^  ^*' 
shall  said  sheriff  or  other  officer  sell  any  slave,  until  he  shall  have 

made  like  advertisement  for  at  least  twenty  days  previous  thereto,  ^"^  i^'^'^  ^"^ . 
nor  shall  said  sheriff  or  other  officer  sell  other   personal  property,  time  advfrtise- 
until  he  shall  have  made  like  advertisement  for  at  least   ten    days  "^*^^*^^^l^  ^^ 
previous  thereto.     And  in  addition  to  the  three  public  places  above 
specified,  every  sale  under  an  execution    issuing   from  a  court    of 
record  shall  be  advertised,  by  the  officer  making  the  same,  at  the 
court  house  of  his  county. 

13.  No  sale   under   an  execution  shall    commence    before  ten  At  what  time 
o'clock  in  the  morning,  or  after  four  o'clock  in  the  evening,  of  the  llniion^slle^' 
day  on  which  such  sale  is  to  be  made.  shall  com- 

14.  Any  sheriff  or  other  officer,  who  shall  make  any  sale   con-penafty  on 
trary  to  the  true  intent  and    meaning  of  this    act,  shall    forfeit  and  sheriff,  &c.  for 

selling  contrary 
to  this  act. 

10.  1822,  c.  1153,  s.  1.— 1820,  c.  1066.— 1821,  c.  1096,  s.  I. 

11.  1832,  c.  12,  s.  1. 

12.  1820,  c.  1066,  s.  I.— 1808,  c.  753,  s.  2. 

13.  1794,  c.  413,  s.  1. 

14.  1820,  c.  1066,  s.  2.-1822,0.  1153,  s.  3. 


^^^  EXECUTIONS.  [Chap.  XLV. 

pay  the  sum  of  two  hundred  dollars,  to  be  recovered  by  any  per- 
son suing  for  the  same,  one  half  to  his  own  use,  and  the  other  half 
to  the  use  of  the  county  where  the  offence  is  committed. 
Sheriff,  &c.  15.   Whenever  a  sheriff  or  Other  officer  shall  return  upon   any 

Se  for'^lant  ^^^"'^  o(  fieri  facias  or  venditioni  exponas  to  him  directed,  that  he 
of  bidders,  how  has  made  no  sale  for  want  of  bidders,  he  shall  state  in  his  return 
to  proceed.  the  several  places  at  which  he  has  advertised  the  sale  of  property  on 
which  he  hath  levied,  and  the  places  at  which  he  hath  offered  the 
same  for  sale,  and  any  sheriff  or  coroner,  faihng  to  make  such  speci- 
fication, shall  for  every  such  omission  be  subject  to  a  fine  of  forty 
dollars,  and  every  constable,  for  a  like  omission  of  duty,  shall  be  sub- 
ject to  a  fine  of  ten  dollars,  for  the  use  and  benefit  of  the  plaintiff  in- 
the  execution  on  which  such  failure  shall  be  made, — for  which  judg 
ment  shall,  on  motion  of  the  plaintiff,  be  granted  by  the  court  be- 
fore which  such  execution  shall  be  returned,  or,  in  the  case  of  a 
justice's  execution,  by  any  justice  before  whom  the  said  execu- 
tion shall  be  returned,  and  the  said  sheriff  or  other  officer  so  failing 
shall  be  further  liable  to  indictment :  Provided,  nothing  contained  in 
this  section,  or  any  recovery  under  the  same,  shall  be  a  bar  to  any 
action  for  a  false  return  against  the  sheriff  or  other  officer  violating 
the  sajiie, 

tiontobind  1^-   ^ here  any  execution  shall  be  issued  by  a  justice  of  the 

erTTnf  T^'  ^^^^^'>  ^'^^  ^^^'^^d  on  personal  property,   such  property  shall  be 
itsy^^.^  '°"'  bound  by  and  from  the  levy  of  such  execution,  and  not  from  the 
teste  thereof. 

oSfmly'^''      ^\-  ^^  ^y  sheriff  or  other  officer,  who  has  levied  an  execution 
take  bond  for    or  Other  process  upon  personal  property,  shall  permit  the  same  to 
iigKr^S^r'ty '®™f  '  ^""'^^  ^^^  possessor  thereof,  it  shall  be  lawful  for  such  officer 
levied  on.         to  take  a  bond  for  the  forthcoming  thereof  to  answer  the  said  exe- 
cution or  process,  which  bond  shall  be  attested  by  at  least  one 
creditable  witness  ;  but  the   said  officer  shall  nevertheless  remain 
hable  as  heretofore  in  all  respects,  to  the  plaintiff's  claim. 
OfBcerhowto        ^^'   If  the  condition  of  any  bond,  given  to  any  sheriff,  coroner 
suTbonT"    °^  constable  for  the  forthcoming  of  any  property  seized  or  levied 
when  broken.    °"  ^J  execution  or  other  process,  be  broken,  it  shall  be  lawful  for 
such  sheriff,  coroner  or  constable,   on  giving  ten  days   previous 
notice  in  writing,  to  the  obligor  or  obhgors  in  such  bond,  to  move 
for  and  obtain  judgment  against  such  obligor  or  obligors  in  a  sum- 
mary manner,  before  the  court  of  pleas  and  quarter  sessions  of  the 
county  in  which  such  sheriff,  coroner  or  constable  may  reside,  for 
all   such  damages   as  said  sheriff,  coroner,  or  constable  may  have 
sustained  or  be  judged  liable  to  sustain,  not  exceeding  the  penalty 
of  the  bond  so  taken,  which  damages  shall  be  ascertained  by  a  jury 
to    be    empanelled  for  that  purpose  under  the   direction  of  the 
court  before  which  such  motion  may  be  made. 
?j5stice'sTx°"     }^:  Wben  an  officer  shall  hereafter  levy  an  execution  issued  by 
ecution  on  land  a  justice  of  the  peace  on  the  land  of  the   defendant,  such  officer 


15.  1815,  c.  887,  S.  1. 

16.  1828,  c.  12,  s.  1. 

17.  1807,  c.  731  s.  3.— 1828,  c.  12,  s.  2. 

18.  1822,  c.  1141,  s  1. 

19.  1828,  c.  8,  s.  6. 


.Chap.  XLV.]  executions.  269 

shall  serve    the   defendant   with    notice    in    writing,   at  least  five  to  give  the  de- 
days  before  the  terra  to  which  the  execution  is   returned,   of  the  dal^j^notlcrbe- 
levy  aforesaid,  and  of  the  term  to  which  it  will  be  returned  ;  and  fore  court. 
if  it  do  not   appear  to  the  court,  when  an  order  of  sale  is  prayed 
for,   that  such  notice  has  been  given,  the  said  court  shall  order  a  ^°^^\  *°  '^j''^^'^ 
notice  to  issue  to   the  defendant,   and  shall  not  proceed  to  make  none  has  been 
any    order   of  sale,   until  such  notice    be  served  on  the  defend-  gi^en. 
ant,  at  least  five  days  previous  to  the  term  of  said  court  :   Provided 
always^  that  upon  affidavit  made  that  such  defendant  has  absconded, 
or  conceals  himself,   or  has  removed  out  of  the  county,  or  is  an 
inhabitant  of  another  state  so  that  the  notice  cannot  be  personally 
served,  the  court  may  order  such  notice  as  it  shall  deem  reasonable 
to  be  given  by  a  publication  in  some  newspaper  ;  and  may,  upon 
proof  of  such  publication,  make  the  order  of  sale  as  though  the 
notice  had  been  actually  given. 

20.  It  shall  be  the  duty  of  the  several  courts  of  pleas  and  quar- County  court 
ter  sessions,  at  the  first  term  which  shall  be  holden  in  their  respec- ^°  ^^^^'^  V'^^. 

■  c  1       c  1  c  T  ■  11  charges  ot  of- 

tive  counties  alter  the  nrst  day  oi  January  m  each  and  every  year,  fleers  for  keep- 
to  settle  the  charges  of  the  aforesaid  officers  for  keeping,  watering  "'?  horses,  &c. 

■*■  ,  ^  tElKGn.  Ill  CXGCU- 

and  feeding  any  horse,  cattle,  hogs  or  sheep,  taken  into  their  cus-  tion. 
tody  under  legal  process,  and  in  case  the  court  shall  not  have  set- 
tled such  charges,  it  shall  be  lawful  for  it  at  any  time  to  fix  such 
compensation  as  shall  be  just  for  the  said  officers  to  receive,  for  keep- 
ing and  maintaining  the  property  aforesaid  and  all  other  property 
the  keeping  of  which  may  be  chargeable  to  them,  which  compen- 
sation may  be  retained  by  said  officers  out  of  the  sales  of  the  pro- 
perty, in  preference  of  the  satisfaction  of  the  process  under  which 
said  property  may  have  been  seized. 

21.  Every  officer  claiming  under  the  last  section  shall  make  out  Officer  to  make 
his  account,  and  if  required,  give  the   debtor,  his  agent  or  factor,  for^keepins""^ 
a  true  copy  thereof,  signed  by  his  own  hand,   and  shall  return  the  horses,  &c. 
said  account  with  the  execution  or  other  process,  under  which  the  ^]!^g  jgi^^Qj!^^^'' 
property  has  been  seized,  to  the  justice  or  the  court  to  whom  the  copy  thereof, 
said  execution  or  process  is   returnable,   and   shall  then  and  there  account^whh  ^ 
also  swear  to  the  correctness  of  the  several  items  therein  set  forth  ;  the  execution, 
otherwise  he  shall  not  be  permitted  to  make  any  recovery  from  the 

debtor. 

22.  Where  any  property,  either  real  or  personal,  shall  be  sold  Purchaser  un- 
on  any  execution  of  fieri  facias,  venditioni  exponas,   or  order  of  ^ay  sug'J[,'g '^g. 
sale,  issued  from  any  court  of  law  or  equity  in  this  State,  or  from  fondant  in  the 
any  justice  of  the  peace,  such  justice  having  jurisdiction   and  au-  therThe  ade- 
thority  to  issue  the  same,   by  any  officer  lawfully  authorized  to  f^^t  in  the  title 
make  such  sale,  and  the  sale   be   legally  and   bona  fide  made,  and  sold.'' ^  ^"^ 
such  property    so   sold  be  not   the  proper  goods    and   chattels, 

lands  and  tenements  (as  the  case  may  be)  of  the  person,  against 
whose  estate  such  execution,  venditioni  exponas,  or  order  of  sale 
may  have  issued,  by  reason  of  which  the  purchaser  at  such  sale 
may  have  been  deprived  of  the  same  property,  or  may  have  been 

20.  1807.  c.  731,  s.  1. 

21.  1807,  c.  731,  s.  2. 

22.  1807,  c.  723. 


2T0  EXECUTIONS.  [Chap.  XLV. 

compelled  to  pay  damages  in  lieu  thereof  to  the  real  owner,  then 
and  in  every  such  case  it  shall  be  lawful  for  such  purchaser,  his 
executors  or  administrators  to  sue  such  person,  against  whom  such 
execution,  venditioni  exponas,  or  order  of  sale  may  have  so  issu- 
ed, or  the  person  legally  representing  him,  in  an  action  on  the 
case,  in  any  court  of  law  in  this  State,  and  recover  such  sum  as  he 
may  have  paid  for  such  property,  with  interest  thereon  from  the 
time  of  such  payment  :  Provided  always,  that  such  property,  if  the 
same  be  personal  property,  be  present  at  such  sale,  and  actually 
delivered  to  such  purchaser. 
A  party,  at  23.   Parties  at  whose  suit  any  person  shall  stand  chai'ged  in  ex- 

personmayb^^^'^tjo"  ^^^  any  debt  Or  damages  recovered,   their  executors  or 
charged  in  ex-  administrators  may,  after  the  death  of  the   person  so  charged  and 

6cution  m&v       J    ■         ■  '1  •  • 

after  the  death  "y'"g  ^^  execution,  havc  new  execution  against  the  lands  and  ten- 

of  such  person  ements,  goods  and  chattels  of  the  person  so  deceased,  as  they  might 

JTaTC  TneT'ex-  ^ave  had  if  such  person  had  never  been  in  execution  :   Provided, 

ecution^agamst  that  when  a  person  shall  so  die  in   execution,   nothing   in  this  sec- 

goodrof'the     tion  shall  give  liberty  to  the  plaintifF  to  have   any  new  execution 

deceased.         against  any  lands,  tenements  or  hereditaments  of  such  party  dying 

in  execution,  which  shall,  after  the  said  judgment,  be  by  him  bona 

fide  sold  for  the  payment  of  any  of  his  creditors,  and  the  money, 

which  shall  be  paid  for  the   lands  so   sold,  either  paid  or  secured 

to  any  of  his  creditors  in  discharge  of  their  debts. 

23.  21  James  1,  c.  24,  s.  2  and  3. 


A'ote. — References  to  Adjudged  Cases. 

Sect.  1.   Bell  rs.  Hill,  1  Hay.  72.     State  vs.  Magnis,  ib   99 

Sect.  2.  Osborne  vs.  Woodson,  1  Hay.  24.  McCoy  I's.  Beard,  2  Hawks,  397.  Wood 
w.  Harrison,  1    Dev.  and  Bat.  356. 

Sect.  3.  Jones  vs.  Edmonds,  3  Murph.  43. 

Sect.  4.  Mcllvain  vs.  Carraway,  N.  C.  Term  R.  194.  Morevs.  McDuffie,  3  Hawks, 
578.  Brown  rs.  Graves,  4  Hawks,  342.  Mordecai  vs.  Parker,  3  Dev.  425.  Harrison 
vs.  Battle,  1  Dev.  Eq.  537. 

Sect   5.  Camp  vs.  Cox,  1  Dev.  and  Rat.  52. 

Sect.  8.  Erwin  vs.  Sloan,  2  Dev.  349. 

Sect.  16.  McCarson  vs.  Richardson,  1  Dev.  and  Bat.  561. 

Sect.  17.  Grey  ds   Bowles,  1  Dev.  and  Bat.  437. 

Sect.  22.  Saunders  vs.  Saunders,  2  Dev.  193. 


Chap.  XL VI.]  executors  and  administrators. 


271 


CHAPTER  46. 

EXECUTORS    AND    ADMINISTRA- 
TORS. 


an  act  concerning  executors  and  administrators. 


Section 

1.  County   courts    shall    grant  letters 

testamentary  and  of  administration. 

2.  To   whom  administration   shall  be 

granted. 

3.  Executors  and  administrators  to  take 

an  oath,  and  administrators  to  give 
bond — Form  of  the  condition. 

4.  Special  administrations  may,  in  cer- 

tain cases,  be  granted  by  three  jus- 
tices. 

5.  Courts   of   equity  may.   in    certain 

cases,  grant  special  administra- 
tion. 

6.  Executors  residing  out  of  the  State 

to  give  bond  and  security  within 
one  year. 

7.  A  man  residing  out  of  the  State,  or 

about  to  remove,  marrying  an  ex- 
ecutrix, may  be  compelled  to  give 
bond  and  security. 

8.  Penalty  for  administering  before  let- 

ters granted. 

9.  Bonds,  how  payable,  and  remedy  on 

them. 

10.  Inventory  to  be  returned. 

11.  When  and  how  an  executor  or  ad- 

ministrator may  sell  the  personal 
property. 

12.  The  preceding  section  not  to  affect 

powers  under  a  will. 

13.  When    administration     granted    to 

highest  creditor,  sheriff  to  sell. 
Sales,  &c.  to  be  at  public  auction, 
and  between  eleven  and  four  o'clock 
— Penalty   for  selling   otherwise — 
Proviso  as  to  executors. 
Dignity  of  debts- 
Executors  and  administrators  to  ad- 
vertise within  two  months. 

17.  How    the    advertisements   may   be 

proved . 

18.  Executors  and  administrators  to  pay 

over  at  the  end  of  two  years — Re- 
funding bonds  to  be  given — Reme- 
dy of  creditors  on  such  bonds. 

19.  Bonds  and  descnptive  lists  of  pro- 

perty to  be  filed  among  the  records 
of  the    county   court — When   and 


14. 


15. 
16. 


Section 

how   the  creditors  may  have  scire 
, facias  on  such  bonds. 

20.  Estates  remaining  seven  years  un- 

claimed, to  be  paid  over  to  trustees 
of  the  university. 

21.  No  debt  to  be  discharged  by  naming 

a  person  executor. 

22.  Estates  for  life  of  another  and  estates 

of  cestui/  que  trust  to  be  assets. 

23.  Executors     and     administrators    to 

have  nine  months  to  plead. 

24.  Same  privileges   in  warrants  before 

justices. 

25.  Warrants   to   be    returned   to  court 

when  an  executor  or  administrator 
pleads  no  assets— Costs  in  such 
cases. 

26.  No  lien  created  by  the  commence- 

ment of  a  suit. 

Heirs  or  devisees  may  contest  the 
plea  of  no  assets — Proceedings 
thereon. 

Deeds  for  lands,  contracted  to  be  sold 
by  deceased,  may  be  made  by  exe- 
cutors and  administrators. 

Commissions  to  executors  and  ad- 
ministrators to  be  allowed  by  the 
county  courts. 

Relief  for  securities  of  executors  and 
administrators  in  the  county  courts 

31.  Power  of  the  superior  court  in  such 

cases. 

32.  Publication  may  be  made   in   such 
cases. 

33.  In  what  cases  executors  of  executors 

shall  have  actions. 

When  some  executors  refuse,  those 
accepting  the  trust  may  sell  lands 
according  to  the  will. 

Who  chargeable  as  executor  da  son 
tort. 

Executors  or  administrators  of  exec- 
utors or  administrators  liable  for 
a  devastavit. 

When  right  of  action  shall  survive 
to  executors  and  administrators, 
and  executors  of  executors. 


27. 


28. 


29. 


30. 


34. 


36. 


37. 


/fr-^t.  J .  al  y/- 


/^^y/- 


(J^  /.  -    SUl  n-e^   2^X73" 


272 


EXECUTORS  AND  ADMINISTRATORS.   [ChAP.  XLVI. 


County  courts 
shall  grant  let- 
ters testament- 
ary and  of  ad- 
ministration. 


To  whom  ad- 
ministration 
shall  be  grant- 
ed. 


Executors  and 
administrators 
to  take  an  oath, 
and  adminis- 
trators to  give 
bond. 


Form  of  the 
condition. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  o/JYorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same. 
That  all  letters  testamentary  and  letters  of  administration  shall  be 
granted  in  the  cornet  of  pleas  and  quarter  sessions  of  the  county, 
where  the  testator  or  intestate  had  his  usual  residence  at  the  time 
of  his  death,  or,  where  the  deceased  had  fixed  places  of  residence 
in  more  than  one  county,  then  in  either  ;  and  all  letters  testa- 
mentary and  letters  of  administration  shall  be  signed  and  issued  by 
the  clerk  of  said  court. 

2.  When  any  person  shall  die  intestate,  or  having  made  a  will 
and  the  executor  shall  refuse  to  prove  the  same  or  qualify  as  such, 
administration  shall  be  granted  to  the  widow,  and  after  her  to  the 
next  of  kin,  or  to  both,  at  the  discretion  of  the  court,  upon  their 
complying  with  the  requirements  of  this  act ;  and  upon  failure  of. 
the  widow  and  next  of  kin  to  make  application  or  to  procure  the 
same,  then  to  the  highest  creditor  residing  within  the  State,  prov- 
ing his  debt  upon  oath  before  the  court  granting  the  same  ;  and 
when  divers  persons,  claiming  the  administration,  are  in  equal 
degree,  the  court  shall  be  at  liberty  to  grant  the  administration  to 
any  one  or  more  ;  and  in  case  of  the  failure  of  any  of  the  persons 
aforesaid  to  apply  for  the  same,  or  if  the  person  applying  shall  be 
deemed  incompetent,  then  the  court  may  grant  administration  to 
any  discreet  person. 

3.  No  clerk  shall  issue  any  letters  testamentary,  until  the  exec- 
utor or  executrix  hath  been  duly  qualified  in  open  court,  by  taking 
the  oath  of  an  executor  to  execute  the  will  of  the  deceased  ;  nor 
letters  of  administration,  until  the  administrator  or  administratrix 
hath  in  like  manner  been  duly  qualified  by  taking  the  oath  of  an 
administrator,  and  hath  also  given  sufficient  bond  with  two  or  more 
able  sureties,  to  be  judged  of  and  taken  before  the  justices  holding 
the  court,  the  penalty  of  which  bond  shall  be  double  the  supposed 
amount  of  the  personal  estate  of  the  intestate,  and  the  condition  in 
form  following  : 

The  condition  of  this  obligation  is  such  that  if  the  above  bounden 
A.  B.,  administrator  of  all  and  singular  the  goods  and  chattels, 
rights  and  credits  of  C.  D.,  deceased,  do  make  or  cause  to  be 
made  a  true  and  perfect  inventory,  and  account  of  sales,  of  all  and 
singular  the  goods  and  chattels,  rights  and  credits  of  the  said 
deceased,  which  have  or  shall  come  to  the  hands,  possession  or 
knowledge  of  him,  the  said  A.  B.,  or  into  the  hands  or  possession 
of  any  other  person  or  persons  for  him,  and  the  same  so  made  do 
exhibit,  or  cause  to  be  exhibited,  into  the  office  of  the  court, 
where  order  for  administration  passed,  within  ninety  days  after  the 
date  of  these  presents,  and  the  same  goods,  chattels  and  credits, 
and  all  other  the  goods,  chattels  and  credits  of  the  said  deceased,  at 
the  time  of  his  death,  or  which  at  any  time  after  shall  come  to  the 
hands  or  possession  of  the  said  A.  B.,  or  into  the  hands  or  pos- 
session of  any  other  person  or  persons  for  him,  do  well  and  truly 


1.  1777,  c.  Uo,  s.  57.— 1789,  c.  308,  s.  1. 

2.  1715,  c.  10.  s.  6.— 1792,  c.  364,  s.  1.— 31  Edw.  3,  c.  11.— 21  Hen.  8.  c.  5,  s.  3,  4. 

3.  1715,  c.  10,  s.  5.- 1791,  c.  341,  s.  l-— 1805,  c.  667 — 22  and  23  Charles  2,  c.  10,  s.  1. 


Chap.  XL VI.]  executors  and  administrators.  273 

administer  according  to  law,  and  further  do  make  or  cause  to  be 
made  a  true  and  just  account  of  his  said  administration  within  two 
years  after  the  date  of  these  presents,  and  all  the  rest  and  residue 
of  the  said  goods,  chattels  and  credits,  which  shall  be  found  remain- 
ing upon  the  said  administrator's  account,  the  same  being  first 
examined  and  allowed  of  by  the  court,  shall  deliver  and  pay  unto 
such  person  or  persons  respectively,  as  the  same  shall  be  due 
unto,  pursuant  to  the  true  intent  and  meaning  of  this  act,  and  if  it 
r  shall  appear  that  any  last  will  and  testament  was  made  by  the 
deceased,  and  the  executor  or  executors  therein  named  do  exhibit 
the  same  into  court,  making  request  to  have  it  allowed  and  ap- 
proved accordingly,  if  the  said  A.  B.,  above  bound,  being  there- 
unto required,  do  render  and  deliver  the  said  letters  of  adminis- 
tration (probate  of  such  testament  being  first  had  and  made)  in  the 
said  court,  then  this  obligation  to  be  void  and  of  no  efl'ect  :  or  else 
to  remain  in  full  force  and  virtue  ;  which  bonds  are  hereby  enacted 
and  declared  to  be  good  to  all  intents  and  purposes,  and  pleadable 
in  any  courts  of  justice. 

4.   Where  any  person  shall  die  intestate,  and  his  or  her  estate  Special  admin- 
is  in  such  situation  as  to  require  the  immediate  care  of  some  Jis- ?^^''^^^°^^ '"^J' 

-,T,■,■,'■r•^c  1  •        •  CI  n^  certain  cases 

Greet  person,  it  shall   be  lawiul  tor  any  three  justices  oi  the  peace  be  granted  by 
of  the  county,  in  which  the  deceased   had  his  or  her  last  usual  ^^^^^^  justices. 
place  of  residence,  to  meet  together  at  the  clerk's  office  of  the 
said  county,  and  to  grant  to  some  discreet  person  special  letters  of 
administration  on  the  estate  of  the  said  deceased,  authorizing  and  v 

empowering  said  person  to  collect  and  take  into  his  or  her  pos- 
session the  estate  of  the  said  deceased,  until  the  next  ensuing  court 
of  pleas  and  quarter  sessions  of  said  county,  and  to  expose  to 
public  sale,  upon  a  credit  of  not  more  than  twelve  nor  less  than 
six  months,  so  much  of  the  crop,  stock  and  provisions  on  hand  as 
ttie  said  three  justices  may  deem  advisable,  and  a  schedule  of  such 
stock,  crop  and  provisions,  so  directed  to  be  sold,  shall  be  made 
out  by  the  said  three  justices,  and  a  copy  thereof,  signed  by  them, 
shall  be  filed  with  the  clerk  of  the  said  county  ;  and  the  said  jus- 
tices, before  granting  letters  of  administration  as  aforesaid,  shall 
require  and  take  from  the  person,  to  whom  the  same  shall  be 
granted,  bond  with  approved  security  in  such  sura  as  the  said  three 
justices  shall  order  and  direct,  conditioned  for  his  faithful  admJnis- 
tration  of  the  said  estate  until  the  next  ensuing  court  of  pleas  and 
quarter  sessions  of  the  said  county,  and  for  his  or  her  faithfully 
accounting  for  and  delivering  over  the  said  estate  to  such  person 
or  persons  as  the  said  court  may  appoint  as  administrator  of  the 
said  estate,  and  the  said  bond  shall  be  filed  with  the  clerk  of  the 
said  county  court  for  safe  keeping  ;  and  the  said  county  court  shall 
proceed  to  grant  general  letters  of  administration  to  such  person 
or  persons  as  are  or  may  be  legally  entitled  to  the  same. 

5.   When  any  person  shall  die  intestate,  leaving  mortgaged  per-  Coiirts  of 
sonal  estate,  and  there  shall  be  no  administration  granted  upon  the  certafnTases'^ 
estate  of  such  deceased  person,  then  and  in  that  case  the  court  of  S"",^"?  special 

administration. 

4.  1816,  C.  913. 

5.  1828,  c.  35. 

VOL.  I.  35 


274  EXECUTORS  AND  ADMINISTRATORS.  [ChAP.  XL VI. 

equity  for  the  county,   where  the    mortgagee  resides,  shall   have 
authority  to  appoint  some  proper  person  a  special   administrator  of 
such  intestate,  to  the  end  that  such  mortgage  may  be  foreclosed  or 
a  decree  obtained  for  the  sale  of  the  property  mortgaged. 
^dhi"outof'        ^*  ^hen  a  testator  or  testatrix  shall  appoint  any  person,  resid- 
the  Smte,  to     ing  out  of  this  State,  executor  or  executrix  of  his  or  her  last  will 
securitTwhWn  ^^^^  testament  it  shall  be  the  duty  of  the  court  of  pleas  and  quarter 
one  year,  sessions,  before  which  the  said  will  shall  be  offered  for  probate,  to 

cause  the  executor  or  executrix  named  therein,  to   enter  into  bond 
with  good  and  sufficient  security  for  his  or  her  faithful  administration 
of  the  estate  of  the  said  testator  or  testatrix,  and  for  the  distribu- 
tion thereof  in  the  manner  prescribed  by  law  ;  the  penalty  of  said 
bond  shall  be  double  the  supposed  amount  of  the  personal  estate  of 
the  said  testator  or  testatrix  ;  and  until  the  said  executor  or  execu- 
trix shall  enter  into  such  bond,  he  or  she  shall  have  no  power  nor 
authority  to  intermeddle  with  the  estate  of  the  said  testator  or  tes- 
tatrix, and  the  court  of  the   county,  in  which  the  testator   or  tes- 
tatrix had  his  or  her  last  usual  place  of  residence,  shall  proceed  to 
grant  letters  of  administration  with  the    will  annexed,  which  shall 
continue  in  force  until  the  said  executor  or  executrix    shall    enter 
into  bond  as  aforesaid.      Provided   nevertheless,  and   it   is  hereby 
declared,  that  the  said  executor  or  executrix  shall  enter  into  bond 
as  by  this  act  directed  within  the  space  of  one  year  after  the  death 
of  the  said  testator  or  testatrix,  and  not  afterwards. 
A  man  resid-         7.   In  all  cases  where  a  man,  residing    out   of  the   State,  shall 
Stlte"or  about  ™^''^7  ^  woman  who  is  appointed  an  executrix  to  the  estate  of  any 
to  remove,        deceased  person,  or  where  a  man  shall  marry  such  an    executrix, 
Secutril  ^ma    ™^  ^^  about  to  remove  or  make  away  with  the  estate  of  the  testa- 
be  compelled  to  tor,  to  the  injury  of  the  creditors  or  representatives,  it  shall  be  the 
securit°v    ^^^  ^"^^^  °^  ^"*^^  man,  so  marrying  such    executrix,   upon   being    so 
required  by  the  court  of  pleas  and  quarter  sessions   of  the  county 
where  the  executrix  resides,  to  give  bond  with  sufficient    security 
for  the  faithful  administration  of  the  estate,  as  is    required   by  law 
in  cases  of  administration  on  the  estate  of  deceased    persons,  and 
there  shall  be  the  same  remedy  upon  such  bond  given  to  the  party 
aggrieved,  as  upon  the  bond  of  an  administrator  in  like  cases,  and 
if  said    man    so  marrying  an    executrix,  shall,  upon    due    notice 
from  the  county  courts,  refuse  or  neglect  to  give    such   bond,  the 
said  courts  respectively  shall  and  may  order  and    decree    that  the 
power  and  authority  of  said  executor  in    right  of  his  wife,  and    of 
such  executrix  as  aforesaid,  be  null  ;  and  thenceforth  all  the  power 
and  authority  of  such  executor  and  his  wife  shall  cease,  and  the 
said  courts  may  then  grant  letters    of  administration  with  the  will 
annexed  or  otherwise,  as  the  case  may  require,  to  such  person  or 
persons  as  they  may  deem  meet. 
Penalty  for  ad-      g.  No  person  shall  enter  upon  the  administration  of  any  deceased 
fore'letterf   ^'  person's  estate,  mitil  they  have  obtained   letters  of  administration, 
granted.  under  the  penalty  of  one  hundred  dollars,  one  half  to  the  informer 

and  the  other  half  to  the  State.     Providedy  that  nothing  contained 

6.  1807,  C.  730,  s.  1.— 1813,  C.  855. 

7.  IffOrjC.  730,  S.  1,2. 

8.  1715,  c.  10,  8.  4.— 1795,  c.  469.— 1816,  c  913. 


f  Chap.  XLVl.]  executors  and  administrators.  275 

'  in  this  or  the  preceding  sections  shall  prevent  the  family  of  the 
deceased  from  using  so  much  of  the    crop,  stock    and    provisions 

.  of  the  deceased  as  may  be  necessary  until  the  granting  of  a  gen- 
eral or  special  administration.     Provided  further,  that    such   right 

!  to  use  the  stock,  crop  and  provisions  shall  not  extend  farther,  than 
to  the  end  of  the  next  succeeding  court  of  pleas    and  quarter  ses- 

i  sions  of  the  county,  where  the  intestate  died. 

9.  All  bonds,  given  by  any  executor  or  administrator  by  virtue  ^°"'^^,'  ^°"™, 
I  of  this  act,  shall  be  made  payable  to  the  State  of  North  Carolina,  remedy 'on 

i  and  any  person  or  persons  or  body  politic  or  corporate  injured  '^^^'^• 
may  and  shall  commence  and  prosecute  a  suit  or  suits  on  said 
i  bonds,  in  the  name  of  the  said  State,  against  the  said  obligor  or 
'  obligors  in  said  bonds  and  their  securities  and  against  the  heirs, 
[  executors  and  administrators  of  each  and  every  of  them,  and  of 
''  each  and  every  one  of  their  securities,  and  shall  and  may  recover 
all  damages  which  he,  she,  they  or  it  may  have  sustained  by  reason 
'  of  the  breach  of  the  conditions  of  said  bonds  or  any  of  them. 

10.  Every  executor  or  administrator  shall,  at  the  term  of  the  ^"^®"*«*ry  *°  ^* 

.  ....       rGtviriicd. 

court  of  pleas  and  quarter  sessions  next  succeeding  his  qualification 
as  executor  or  executrix,  administrator  or  administratrix,  return  to 
the  said  court  on  oath  a  just,  true  and  perfect  inventory  of  all  the 
goods  and  chattels  of  the  deceased,  which  have  come  to  his  hands 
or  the  hands  of  any  other  person  for  him,  which  inventory  shall  be 
signed  by  the  person  returning  the  same,  and  shall  be  recorded  by 
the  clerk  of  the  said  court. 

1 1 .  When  the  estate  of  any  person  deceased  shall  be  so  far  When  and  how 
indebted,  as  that  the  debts  cannot  be  discharged  by  the  moneys  on  admfnistrator' 
hand  at  the  death  of  the   testator,  or  by  the  sale  of  the  perishable  may  sell  the 
commodities,  or  when  a  sale  shall  be  deemed  necessary  for  a  just  eny°°^  ^^°^' 
and  proper  distribution  or  division  of  such  personal  estate,  then  it 

is  and  shall  be  the  duty  of  every  executor  or  administrator  to  sell 
and  dispose  of  the  goods  and  chattels  of  his  or  her  testator  or  tes- 
tatrix or  intestate,  first  obtaining  an  order  of  the  court  of  the  county 
for  that  purpose,  for  the  most  that  may  be  gotten  for  the  same  by 
public  sale,  having  first  advertised  the  same  at  the  court  house  and 
four  other  pubhc  places  within  the  county,  at  least  twenty  days 
before  the  sale,  and  shall,  for  enhancing  the  price  thereof, 
give  not  less  than  six  months  credit  upon  bond  and  security 
given  ;  and  such  executor  or  administrator  shall,  after  the  time  of 
such  payment  is  passed,  take  and  pursue  all  lawful  ways  and  means  ,^^' 

to  recover  and  receive  the  money  so  due  as  aforesaid,  or  otherwise 
shall  be  chargeable  and  answerable  for  the  same  ;  and  such  moneys, 
when  received,  shall  be  liable  for  the  satisfaction  of  judgments  pre- 
viously obtained  and  entered  up  as  judgments  when  assets  shoidd 
come  to  the  hands  of  the  executor  or  administrator. 

12.  Nothing  in  the  preceding  section  shall  be  construed  to  affect  section^not  to 
the  powers,  trusts  or  authorities  of  an  executor  or  executrix.,  de- ^^^^^^  P""^"** 
rived  from  the  will  of  his  or  her  testator  or  testatrix. 

9.  1715,  c.  10,  s.  5.— 1791,  c.  341,  s.  1.— 1833,  c.  17. 

10.  1723,  c.  15,  s.  2.— 1793,  c.  391,  s.  2. 

11.  1723,  c.  15,  s.  2  and  3.— 1794,  c.  415,  s.  1. 

12.  1794,  c.  416,  S.  2. 


276 


When  adminis- 
tration granted 
to  highest  cred- 
itor, sheriff  to 
sell. 

Sales,  &c.  to  be 
at  public  auc- 
tion, and  be- 
tween 1 1  and  4 
o'clock. 


Penalty  for 
selling  other- 
wise. 


Proviso  as  to 
executors. 


Dignity  of 
debts. 


Executors  and 
administrators 
to  advertise 
within  two 
months. 


How  the  ad- 
vertisements 
may  be  proved. 


EXECUTORS  AND  ADMINISTRATORS.   [ChAP.  XLVI. 

13.  Where  administration  is  granted  to  the  highest  creditor  of 
the  deceased,  then  and  in  that  case  the  sale  shall  be  made  and 
conducted  by  the  sheriff  of  the  county,  under  the  same  rules  and 
regulations  as  prescribed  for  executors  and  administrators. 

14.  Alfsales  and  renting  and  hiring  of  the  property,  both  real 
and  personal,  of  deceased  persons,  shall  be  made  and  done  by  way 
of  public  vendue  or  auction,  and  no  such  sale  or  renting  or  hiring 
shall  commence  before  eleven  o'clock  in  the  morning,  or  after  four 
o'clock  in  the  evening,  of  the  day  on  which  such  sale  or  auction 
or  renting  or  hiring  is  to  be  made  ;  and  any  sheriff,  executor  or 
administrator,  who  shall  make  any  sale  or  renting  or  hiring  contrary 
to  the  true  intent  and  meaning  of  this  section,  shall  forfeit  and  pay 
the  sum  of  two  hundred  dollars,  to  be  recovered  by  any  person 
suing  for  the  same  in  any  court  of  record  within  this  State.  Pro- 
vided, that  nothing  herein  contained  shall  be  construed  to  extend  in 
any  manner  to  executors,  in  cases  where  discretionary  powers  are 
vested  in  them  by  the  will  of  their  testator. 

15.  Executors  and  administrators,  in  the  payment  of  the  debts 
of  their  testators  and  intestates,  shall  hereafter  hold  and  consider 
debts  due  upon  bills,  bonds  and  promissory  notes,  whether  with  or 
without  seal,  and  all  settled  and  liquidated  accounts,  signed  by  the 
debtor,  as  of  equal  dignity,  and  shall  pay  the  same  accordingly  : 
Provided  always,  that  executors  and  administrators  shall  in  all  other 
respects,  except  as  aforesaid,  have  the  same  right  of  prefer- 
ence in  the  payment  of  creditors  which  they  have  heretofore  had 
and  held. 

16.  Every  executor  and  administrator  shall,  within  two  months 
after  being  quahfied  as  executor  or  administrator,  advertise  at  the 
court  house  of  the  county,  where  the  deceased  usually  dwelt  at  the 
time  of  his  death,  and  other  public  places  in  said  county,  for  all 
persons  to  bring  their  accounts  and  demands  of  every  kind  and 
denomination  to  the  said  executor  or  administrator  within  the  time 
prescribed  by  law. 

17.  Every  executor  and  administrator  shall  take  a  copy  or 
copies  of  the  advertisements  he  shall  put  up,  or  cause  to  be  put 
up,  in  pursuance  of  this  act,  which  copy  or  copies,  with  an  affidavit 
made  thereon  before  some  justice  of  the  peace  of  the  county  in 
which  advertisements  are  herein  directed  to  be  made,  by  some 
competent  witness,  stating  therein  the  time  and  times,  and  place 
and  places,  when  and  where  the  said,  advertisements  were  seen, 
shall,  at  the  term  of  the  court  next  follo^-ing  that  in  which  any  last 
will  and  testament  shall  have  been  admitted  to  probate,  or  any  ad- 
ministration shall  have  been  granted,  be  filed  in  the  office  of  the 
clerk  of  said  court ;  and  the  said  copy  or  copies,  attested  as  afore- 
said, shall  be  considered  as  a  record  of  said  court,  and  the  same, 
with  a  certificate  of  the  clerk  thereon,  certifying  that  the  said  copy 
or  copies  was  or  were  filed  at  the  time  herein  required,   shall  be 

13  1793,  c.  391,  s.  1. 

14.  1794,  c.  413,  s.  1,2. 

15.  1786.  c.  248,  s  2. 

16.  1789,0.  308,  s.  6. 

17.  1804,  c.  666.    .  ' 


(  Chap.  XLVL]  executors  and  administrators.  277 

I 

)  received  as  evidence  in  any  court  of  law  or  equity,  or  before  any 
'  jurisdiction  in  this  State  :   Provided  always,   that  nothing   herein 

contained   shall  be   so   construed  as  to  preclude  any  executor  or 

administrator  from  proving  his  compliance  with  the  requisites  of 
'  the  sixteenth  section  of  this   act,  in  any  other  manner  which  may 

be  deemed  competent  by  the  court  before  whom  the  evidence  may 

be  offered. 

18.  No  executor  or  administrator  shall  take,  hold  or  retain  in  Executors  and 

'   ,  .     ,        ,  n     ^         1  11  1  1  •  administrators 

his  hands  more  oi  the  deceased  s   estate  than  amounts  to  his  ne-  to  pay  over  at 
cessary  charges    and  disbursements,  and  such  debts  as  he  shain'^^®'^'^"^ '■"^^ 
legally  pay  within  two  years  after  administration  granted  :  but  all 
such  estate  so  remaining  shall,  immediately  after  the  expiration  of 
two  years,  be  divided,  dehvered  and  paid  over  to  such  person  or 
persons  to  whom  the  same  may  be  due  by  law  or  the  will  of  the 

J  J  1  ^*u       r       *i  •    •       Refundins  bond 

deceased,  such  person  or  persons,  or  some  other  lor  them,  giving  ^o be  given. 
bond  with  two  or  more  able  sureties,  that  if  any  debt,  truly  owing 
by  the  deceased,  shall  be  afterwards  sued  for  and  recovered,  or 
otherwise  duly  made  appear,  that  then  and  in  every  such  case  he 
or  they  shall  respectively  refund  and  pay  each  his  or  her  ratable 
part  of  that  debt  or  debts,  out  of  the  part  or  share  so  as  aforesaid  al- 
lotted to  him  or  her,  and  such  bond  so  taken  shall  be  made  payable 
to  the  State  of  North  Carolina,  which  said  bond  shall  be  and  enure 
to  the  sole  use  and  advantage  of  the  creditors,  and  such  creditor  Remedy  of 
or  credhors  shall  and  may  have  a  scire  facias  in  manner  hereinafter '^''*"ii*^^®°'i 

■  sucii  Donds 

directed  against  the  obligors  in  the  said  bond,  as  if  the  said  bond' 
had  been  drawn  and  dehvered  to  such  creditor  or  creditors. 

19.  The  bonds,  so  taken  by  executors  and  administrators  from  Bonds  and 
legatees  or  persons  entitled   to  distributive  shares  of  the  estate  of^jg^g^^^p^.^ 
an   intestate,    shall  by  such  executor  or  administrator  be  brought  ty  to  be  filed 
into  court,  at  the  next  succeeding  term  after  such  bonds  are  so  ta-  c^ds^of  the^ 
ken,  together  with  a  descriptive  hst  of  the  property  so  dehvered  county  court. 
by  them  to  the  legatees   or  persons  entitled  to  receive  the  same, 

and  a  record  shall  be  made  of  said  bonds  and  said  descriptive  list, 
and  the  said  bonds  shall  then  be  lodged  in  the  office  of  said  court 
with  the  records  of  the  same  ;  and  in  all  suits,  where  the  executors  when  and  how 
or  administrators  of  any  deceased  person  shall  plead  fully  adminis-  ||^av%^ave°a^ 
tered,  no  assets  or  not  sufficient  assets  to  satisfy  the  plaintiff's  de- sdre fadas  on 
mand,  and  such  plea  shall  be  found  in  favor  of  the  defendant,  the  ®"*^^  *^°'^'^^" 
plaintiff  may  proceed  to  ascertain  his  demand  and  sign  judgment, 
and  on  motion  a  writ  or  writs  of  scire  facias  shall  and  may  issue, 
summoning  such  persons,  who  have  entered  into  bond  as  aforesaid, 
to  shew  cause  why  execution  shall  not  issue  against  them  for  the 
amount  of  such  judgment,  and  if  there  shall  be  judgment  against 
the  defendant  or  defendants  to  the  scire  facias  or  any  of  them,  ex- 
ecution shall  and  may  issue  thereon  against  the  proper  goods  and 
chattels,  lands  and  tenements  of  such  defendant  or  defendants. 

20.  All  sums  of  money  or  other  estate  of  whatever  kind,  which  ^^^.'^t^^'^- 

,     ,,  .  1111  r  •      •       1       1         1  mairimg  seven 

snah  now  remain  or  shall  herealter  remain  in  the  hands  or  posses- years  unclaim- 

IS.  1789,  c.  308,  s.  2. 

19.  1789,  c.  308,  s.  4.— 1791,  c.  351,  s.  5. 

20.  1784,  c.  205,  s.  2.— 1309,  c.  763,  s.  1. 


278 


EXECUTORS  AND  ADMINISTRATORS.  [ChAP.  XL VI. 


ed,  to  be  paid   sioii  of  any  executor  or  administrator  for  seven  years  after  his 

over  to  trustees  t^.-  ,  ,..  •' 


over  to  trustees 
of  the  univer 
sity. 


qualification  as  such  executor  or  administrator,  unrecovered  or 
unclaimed  by  suit  by  the  creditors,  legatees,  next  of  kin  or 
widow  of  his  testator  or  intestate,  shall  by  the  said  executor  or 
administrator  be  paid  over  to  the  trustees  of  the  university  of 
North  Carolina. 

No  debt  to  be       21.   The  naming  or  appointing  any  person  executor  shall  not  be 

na^i^iy^peJ-  Considered  a  discharge  of  any  debt  or  demand  due  from  the  person, 

son  executor.    SO  named  as  executor,  to  the  testator. 

Estates  for  life       22.   If  any  person  shall  die  seized  of  an   estate  in  lands,  tene- 

ot  another  and  ^  i  i-  r        i       t^        <•  ,  .      ,  ' 

estates  of  ces-   ments  or  hereditaments  tor  the  life  of  another,  and  shall  not  by 
iolealsItT^    last  will  have  devised  the  same,  and  the  said  estate  shall  not  have 
come  to  the  heir  or  heirs  at  law  of  the  tenant  for  life  by  special 
occupancy,  then  the  said  estate  shall  vest  in  the  executors  or  ad- 
ministrators of  the  said  tenant  for  life  ;  and  if  any  cestuy  que  trust 
shall  die  leaving  any  equitable  interest  in  any  estate  real  or  person- 
al, which  shall  come  to  his  executors  or  administrators,  every  such 
estate  in  lands,  tenements  and  hereditaments  for  the  life  of  another, 
and  every  such  equitable  interest,  shall  be  deemed  personal  assets 
in  the  hands  of  said  executors  and  administrators  for  the  benefit 
of  the  creditors,  legatees  and  distributees. 
Executors  and       23.   No  executor  or  administrator  shall  be  bound  or  compelled 
SavfnTnr  ^°  P^^^^.  ^^.^^y  Original  suit,  brought  against  him  in  any  court,  until 
months  to        the  expiration  of  nine  calendar  months  from  and    after  his    taking 
upon  himself  the  office  of  executor  or  administrator. 

24.   When  an  executor  or  administrator  shall  be    warranted  for 


plead. 

Same  privilege 
in  warrants  ' 
fore  justices 


m  warran  s   e-  ^^^^  demand  against  his  testator  or   intestate,  before  the  expiration 


Warrant  to  be 
returned  to 
court  when  an 
executor  or 
administrator 
pleads  no  as- 
sets. 


of  nine  calendar  months  as  aforesaid,  it  shall  be  the  duty  of  the 
magistrate,  before  whom  said  warrant  shall  be  returned,  to  post- 
pone, by  an  endorsement  on  the  back  of  the  warrant,  the  trial 
thereof  to  some  day  after  the  expiration  of  said  time,  on  which 
day  it  may  be  tried. 

25.  When  any  executor  or  administrator  shall  be  warranted  and 
be  desirous  to  avail  himself  of  his  want  of  assets,  it  shall  be  his 
duty  on  the  trial  to  suggest  the  same  to  the  magistrate,  who  shall 
thereupon  endorse  the  same  on  the  warrant,  and  if  he  find  the 
plaintiff's  claim  to  be  just  he  may  give  a  judgment  therefor,  and 
shall  return  the  warrant  with  such  endorsement  and  judgment  to  the 
first  term  of  the  court  of  pleas  and  quarter  sessions  of  his  county, 
when  the  defendant  may  plead  any  plea  relative  to  his  assets,  which 
could  be  pleaded  had  the  suit  been   instituted   returnable   to    said 

Costs  in  such    term  :  and  in  all  cases  so  returned,  the  same  costs  shall  be  allowed 

^^^^-  as  in  cases  of  appeals  from  justices. 

by*'commence^-       ^6.  No  hen  on  the  goods  of  a  deceased  person  shall  be  created 

meat  of  a  suit,  by  the  Commencement  of  a  suit  or  the  service  of  a  writ   on   his 
executor  or  administrator,  but  the  executor  or  administrator  shall 

21.  1794,  c.  41.5,  s.  3. 

22.  1812,  c.  830,  s.  1.— 1813,  c.  983,  s.  2. 

23.  1828,  c.  8,  s.  4. 

24.  1828,  c.  8,s.  1. 

25.  1828,  c.  8,  s.  2  and  3. 
20.  1823,  c.  8,  s.  9. 


Chap.  XLVI.]  executors  and  administrators.  279 

be  at  liberty  to  sell  the  goods  of  his  testator  or  intestate,  as  if  such 
writ  had  not  been  served  on  him  or  such  suit  commenced. 

27.  When  any  executor  or  administrator  shall  plead  fully  admin- jjg-j.g  ^j.  ^gl- 
istered, no  assets  or  not  sufficient  to  pay  the    plaintiff's  debt,   not- sees  may  con- 
withstanding  that  such  plea  should  be  found  in  favor  of  the  defend-  no^asle'ts^  ^^ 
ant  or  defendants  on  the  trial    of  the   issue,  the  heirs    or    devisees 

shall  be  permitted  to  contest  the  truth  thereof,  and  upon  the  plea  Proceedings 
of  such  heirs  or  devisees,  that  the  executors  or  administrators  have  '"'^°'^" 
sufficient  assets  or  have  wasted  or  concealed  the  same,  the  court 
shall  order  the  trial  of  a  collateral  issue  between  the  executors  or 
administrators  and  such  heirs  or  devisees,  which  if  found  against  the 
executors  or  administrators,  the  original  plaintiff  shall  have  exe- 
cution, not  only  against  the  goods  and  chattels  of  the  deceased 
debtor,  but  against  the  proper  goods,  chattels,  lands  and  tenements 
of  such  executors  or  administrators  ;  and  the  said  collateral  issue 
shall  be  tried  at  or  before  the  next  term  thereafter  of  the  court, 
when  the  same  shall  be  ordered,  unless,  on  a  sufficient  cause  shown 
to  the  court,  further  time  shall  be  given. 

28.  The  executors  or    administrators  of  any   deceased   person  Deeds  for  lands, 
are  fully  authorized  and  empowered  to  execute  a  deed  or  deeds  of ^""g^j^^^^^  ^°_ 
conveyance  for  any  lands,  that  may  have  been  bonajide  sold  by  the  ceased,  may  be 
deceased,  and  for  which  he  has  given  to  the  purchaser  a   bond  or  Jj^^^^^ ^^^^'^^If ' 
bonds  to  convey  the  same:    Provided,  said  bond  or  bonds  be  first  minisuators. 
proved  in  the  court  of  the  county,  where  the  said  lands  are  situated, 

if  in  this  State  ;  if  not,  the  bonds  to  be  proved  in  the  county, 
where  the  obligee  lives  or  obligor  died,  and  which  bond  so  proved 
shall  be  recorded  and  registered  in  the  register's  books  of  said 
county  :  And  provided,  the  deeds  thus  executed  shall  not  convey 
other  or  a  greater  quantity  of  land,  or  higher  titles,  than  were  spe- 
cified in  said  bonds  :  And  all  deeds  thus  executed  shall  be  as  good 
and  valid  in  law  as  the  same  would  have  been,  if  executed  by  the 
original  obligors  :  Jlnd  provided  also,  that  no  executor  or  adminis- 
trator shall  be  authorized  under  this  section  to  execute  titles,  pre- 
vious to  the  full  payment  of  all  the  purchase  moneys  due  for  said 
lands,  if  the  bond  of  performance  specifies  that  the  purchase  mo- 
neys were  to  be  paid  before  the  titles  should  be  made. 

29.  The  several  courts  of  pleas    and    quarter    sessions    of  this  Commissions 
State  are  hereby  authorized  and  directed,  in  making  allowances  of  ^°^^j[^Jj^j°'jg_ 
commissions  to  executors  and  administrators,  to  take  into  conside-  trators  to  be 
ration  the  trouble  and  time  expended    in   the    management  of  any  g^,°,^^,g^Jj.[^® 
deceased  person's  estate,  and  shall  make  an  allowance  of  commis- 
sions, not  exceeding  five  per  centum  for  the  amount  of  the  receipts 

and  expenditures,  which  shall  appear  to  be  fairly  made  in  the  man- 
agement of  any  such  deceased  person's  estate,  and  any  allowance 
made  shall  be  held  and  deemed  a  proper  and  fair  charge  against  the 
assets  in  the  hands  of  any  such  executor  or  administrator,  and  he, 
she  or  they  shall  and  may  retain  for  the  same,  as  well  against  any 
creditor  of  the  deceased  as  against  persons  claiming    as    legatees, 

27.   1734,0.  226,  s.  5.— 1810,  e.  792. 

2S.   1767,0.473. 

29     1790,  C.  536,  s.  2. 


280 


EXECUTORS  AND  ADMINISTRATORS.  [ChAP    XLVI. 


Relief  for  secu 
rities  ofexecu 
tors  and  admin- 
istrators in  the 
county  courts. 


Power  of  the 
superior  court 
in  such  cases. 


Publication 
may  be  made 
in  such  cases. 


In  what  cases 
executors  of 
executors 
shall  have  ac- 
tions. 


or  as  being  entitled  to  distributive  shares  of  such  deceased  person's 
estate  :  Provided,  that  nothing  herein  contained  shall  be  construed 
to  prevent  any  executor  or  administrator  from  retaining  for  neces- 
sary charges  and  disbursements,  in  the  same  manner  as  hath  here- 
tofore been  allowed  by  law. 

30.  In  all  cases  wherein  any  person  has  heretofore,  or  may 
hereafter  become  bound  as  security  for  any  person  as  administrator 
or  executor,  and  shall  conceive  himself  in  danger  of  becoming  lia- 
ble by  reason  thereof,  it  shall  and  may  be  lawful  for  the  county 
court,  wherein  said  person  so  became  bound,  upon  the  petition  of 
the  party,  supported  by  oath  or  affidavit,  to  them  exhibited,  forth- 
with to  order  a  summons  to  issue  against  the  party  or  parties  with 
and  for  whom  the  petitioner  or  petitioners  stand  bound,  return- 
able to  the  next  term  of  the  said  court,  and  thereupon  compel 
such  party  or  parties  to  give  other  sufficient  or  counter  security  to 
be  approved  by  said  court,  or  to  deliver  up  the  estate  to  said  peti- 
tioners or  to  such  other  person  as  the  court  shall  direct,  and  they 
may  and  they  are  hereby  authorized  and  empowered  to  make 
such  other  order  or  rule  thereon,  for  the  rehef  of  the  petitioners  and 
better  securing  such  estate,  as  to  them  shall  seem  just  and  equitable. 
Provided  always,  that  any  person  appointed  to  the  management  of 
any  estate  in  the  room  of  any  executor  or  administrator,  removed 
by  virtue  of  this  section,  shall  be  accountable  to  creditors  and  oth- 
ers interested  in  the  estate  to  the  extent  of  the  assets  received,  in 
like  manner  as  executors  and  administrators  by  law  are  liable. 

31.  The  same  relief  shall  and  may  be  had  by  petition  in  the 
superior  court  of  law.  And  where  the  petition  shall  be  in  a 
superior  court,  it  shall  be  in  the  power  of  any  judge  of  said  court, 
either  in  or  out  of  court,  on  the  petition  exhibited  therein  and 
containing  such  allegations,  verified  by  affidavit,  as  to  him  shall 
seem  sufficient,  to  make  from  time  to  time  such  orders  as  may  be 
necessary  to  preserve  the  estate  of  the  testator  or  intestate,  in  pos- 
session or  in  action,  until  the  hearing  of  the  petition,  and  to  direct 
such  special  writ  or  writs  to  issue  as  may  be  necessary  to  carry 
such  orders  into  effect  :  Provided,  that  before  any  such  special 
writ  or  writs  shall  issue  the  petitioner  shall  perform  such  terms  as 
said  judge  shall  prescribe,  and  as  justice  and  equity  shall  require, 
by  giving  security  or  otherwise. 

32.  In  case  it  should  appear  to  the  court  that  the  summons, 
directed  in  the  thirtieth  section  of  this  act  to  issue,  cannot  be  per- 
sonally served  on  the  executor  or  executors,  administrator  or  ad- 
ministrators, residing  out  of  the  State,  it  shall  and  may  be  lawful 
for  said  court  to  order  pubhcation  to  be  made  by  advertisement 
in  some  newspaper  for  such  time  as  the  said  coiurt  may  think 
proper. 

33.  Executors  of  executors  shall  have  actions  of  debt,  account, 
and  for  goods  of  the  first  testator  carried  away,  in  the  same  manner 
as  the  first  testator  should  have  had,  and  they  shall  answer  to  others 

30.  1822,0.  1137.-1826,0.23. 

3U  1822,0.  1137,  S.  2. 

32.  1822,  0.  1137,  s.  3. 

33.  25  Edw.  3,  Stat.  5,  c.  5. 


Chap.  XL VI.]  executors  and  administrators.  281 

:  for  as  much  as  they  may  have  recovered  of  the  goods  of  the  first 

testator,  or  ought  or  might  have  done,  as  the  first  executors  should 

do. 

34.  Where  part  of  the  executors  of  any  person,  making  a  will  "^^^n some  ex- 

of  lands  to  be  sold  by  his  executors,  refuse  to  take  upon  them  the  those  accepting 
;  administration,  all  bargains  and  sales,  made  by  them  only  of  the  ^^^  trust  may 
f  executors  that  accept  such  administration,    shall  be  as  effectual,  as  cording  to  the 
i  if  all  the  executors  named  in  the  will  had  joined  in  making  the  bar-  ^^'1- 
I  gain  and  sale.     And  when  all  the  executors   so  appointed  die,  or 
t  refuse  to  take  on  them  the   administration,   the  administrator  with 
1  the  will  annexed  shall  have  full  power  to  sell  said  lands  so  devised, 
.  and  all  bargains  and  sales,  so  made  by  such  administrators  with  the 

will  annexed,  shall  be  as  effectual  as  if  made  by  said  executors. 
j      35.   Every  person  who  shall  receive  goods  or  debts  of  any  per- 
\  son  dying  intestate,   or  any  release  of  any  debt  due  the  intestate,  able  as  execu- 

upon  a  fraudulent  intent,   or  without  such   valuable   consideration  tor  de  son  tort. 

as  shall  amount  to  the  value  or  thereabout,  except  it  be  in  the  sat- 
i  isfaction  of  some  debt,  shall  be  chargeable  as  executor  of  his  own 
'  wrong,  so  far  as  such  debts  and  goods,  coming  to  his  hands,  or 
1  whereof  he  is  released,  will  satisfy,  deducting  all  just  debts  owing 

to  him  by  the  intestate,  and  all  other  payments  made  by  him. 

36.  The  executors  and  administrators  of  persons  who,  as  right- Executors  or 

I  /•  1  ,  ^         •     *i     ■  J     •    •   .     J  administrators 

I  lul  executors,  or  executors  m  their  own  wrong,  or  as  admmistrators,  ^f  executors 
shall  waste  or  convert  to  their  use  any  estate  or  assets  of  any  per-  or  administra- 
son  deceased,  shall   be  chargeable  in  the  same  manner   as   ihe'^Y  ^^^astavit.°^ 
testator  or  intestate  might  have  been. 
[       37.  Executors  and  administrators,  and  executors  of  executors,  When  right  of 
shall  have  actions  in  like  manner  as   the  first  testator   or  intestate  survive^  to  ex- 
1  might  have  had,  for  the  goods  taken  or  converted,  and  for  arrear- ecjiiprs  and  ad- 
:  ages  of  rent  due  the  first  testator  or  intestate,  however  due  and  ow-  and'executors 
i  ing,  and  for  injuries  done  to  the  property  of  said  intestate  or  first  "f  executors. 

testator,  either  real  or  personal,  where  such  detainer  or  conversion 

;  happened,  or  such  injury  was   sustained,   or  such  rent  due,  in  the 

'  lifetime  of  the  said   intestate   or  first   testator,  aiid  when  such  de- 

1  tainer,  or  conversion,  or  injury  sustained  or  rent  due,  had  not  been 

satisfied  against  the  person  or  persons  so  detaining  or  converting 

such  goods,  or  committing  such  injuries,   or  from  whom  the  rent 

may  be  due  and  owing,  their  and  each  of  their  executors,  adminis- 


I  trators  and  heirs. 


34.  21  Hen.  8,  c.  4,  s.  1. 

35.  43  Eliz.  c.  8,  s.  2. 

36.  30  Ch.  2,  c.  7,  s.  2.-4  and  5  W.  and  M.  c.  24,  s.  12. 

37.  4  Edw.  3,  c  5.-25  Edw.  3,  c.  7.— 21  Hen.  S,  c.  4,  s.  I. 


Note. — References  to  Adjudged  Cases. 

Sect.  1.  Ledbetter  «s.  Loftin,  1  Murph.  224.     Collins  w.  Turner,  N.  C.   Term  R. 
,1    105. 

Sect.  2.  Ritchie  vs.  McAuslan,  1  Hay.  220.     Carthew  vs.  W^ebb,  2  Murph.  268. 

Sect.  9.  Chairman  vs.  Moore,  2  Murph.  22. 

Sect.  10.  Anon.  1  Hay.  481. 

Sect.  15.  Hubhel  vs.  Thurston,  4  Dev.  502. 

Sect.  16.  Blount  rs.  Porterfield,  2  Hay.  161. 

VOL.  I.  36 


282 


FAIRS. 


[Chap.  XLVIL 


Sect.  18.  Cheatham  rs.  Boykin,  N.  C.  Term  R.  238.  Mayo  vs.  Mayo,  2  Hawks, 
329.     Ralston  vs.  Telfair,  2  Dev.  Eq.  255. 

Sect.  19.  Cheatham  vs.  Boykin,  2  Murph.  301. 

Sect.  29.  Shaw  vs.  Shaw,  Tayl.  125.  Bond  vs.  Turner,  2  Mnrph.  331.  Potter  rs. 
Stone,  2  Hawks,  30.  Hodges  vs.  Armstrong,  3  Dev.  253.  Clark  vs.  Blount,  2  Dev. 
Eq.  51. 

Sect.  34.  Miller  vs.  White,  Ta3'l.  309.  Marr  vs.  Pray,  2  Murph.  84.  Wood  r-s. 
Sparks,  1  Dev.  and  Bat.  389. 

Sect.  35.  Norfleet  vs.  Reddick,  3  Dev.  221.    Barnard  vs.  Gregory,  3  Dev.  223. 


CHAPTER  47. 

FAIRS. 


AN  ACT  TO  EMPOWER  THE  SEVERAL  COUNTY  COURTS  TO   ESTAB- 
LISH FAIRS  IN  THEIR  RESPECTIVE  COUNTIES. 


Section 

1 .  County  Courts  may  appoint  fairs. 

2.  Commissioners  to  be  appointed,  who 

may  regulate  fairs. 


Section 
3.  Inhabitants   to  have  free  liberty  of 
the  fairs. 


County  courts 
may  appoint 
fairs. 


who  may  reg- 
ulate the  fairs. 


1.  3e.  it  enacted  by  the  General  Assembly  of  the  State  of  J^ortk 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  samCy 
That  it  shall  and  may  be  lawful  for  the  several  county  courts,  a 
majority  of  the  acting  justices  of  the  county  being  present,  to  ap- 
point a  fair  or  fairs  in  their  respective  counties,  at  such  place  or 
places  as  they  may  judge  most  proper  for  the  convenience  of  the 
inhabitants,  so  as  to  afford  an  opportunity  and  give  encouragement 
to  industry,  by  collecting  the  inhabitants  for  the  purpose  of  ex- 
changing, bartering  and  selling  all  such  articles  as  they  may  vi^ish  or 
be  necessitated  to  dispose  of. 
Commissioners  ^"  ^^^^^  ^ny  of  the  said  courts  may  think  proper  to  estabhsh  a 
to  be  appointed,  fair,  they  shall  nominate  and  appoint  commissioners,  a  majority  of 
whom  shall  in  all  cases  be  a  quorum  sufficient  to  act,  to  regulate 
and  conduct  the  same,  by  drawing  up  and  forming  a  system  of  by- 
laws for  the  government  thereof,  to  be  approved  by  said  court  and 
entered  of  record  ;  which  rules  so  formed  as  aforesaid  shall  be 
considered  as  valid  and  as  effectual  as  if  they  had  been  expressed 
by  an  act  of  assembly  for  that  special  purpose.  Provided  never- 
theless, that  said  rules  shall  not  be  contrary  to  or  inconsistent  with 
the  law  of  the  land. 

3.  The  inhabitants  of  any  county,  wherein  any  fairs  shall  be 
established,  shall  have  free  liberty  and  power  to  attend  the  same, 
dispose  of,  exchange  or  barter  any  article  or  articles  whatsoever 
therein,  without  any  restraint  or  distinction  whatever  ;  subject 
nevertheless  to  such  rules  as  the  commissioners  aforesaid,  or  a 
majority  of  them,  shall  or  may  form  for  the  regulation  thereof. 

1.  1794,  c.  421,  s.  1  and  4. 

2.  1794,  c.  421,  s.  2  and  4. 

3.  1794,  C.  421,  s.  3. 


Inhabitants  to 
have  free  lib- 
erty of  the 
fairs. 


Chap.  XLVIIL] 


FENCES. 


CHAPTER  48. 


283 


FENCES. 


AN  ACT  CONCERNING  FENCES. 


Section 


1.  Ever  J'  planter  shall  keep  a  sufficient 

fence  around  his  cleared  ground  un- 
der cultivation. 

2.  Damages  done  by  stock  when  fence 

is  sufficient,   how  ascertained  and 
recovered. 

3.  Injuries  done  to  stock  by  persons  not 

having   a  legal  fence,  how^  ascer- 
tained and  recovered. 


Section 

4.  Either  party  dissatisfied  may  appeal 

— Proceedings  thereon. 

5.  Either  party  may  summon  witnesses. 

6.  Penalty  on  slaves  for  killing  stock 

contrary  to  the  provisions  of  this 
act — Master  or  overseer  to  pay  the 
damages  sustained. 


1.  BF.it  enacted  by  the  General  Assembly  of  the  State  of  JVbrth 
Carolina,  and  it  is  hereby  enacted  by   the   authority  of  the  same, 

That  every  planter  shall  make  a  sufficient  fence  about  his  cleared  Every  planter 
ground,  under   cultivation,   at  least  five   feet  high,    unless  where  sufficicnt^ence 
there  shall  be  some  navigable   stream   or   deep   water  course  that  ^r^"""]  ^^^ 
may  be  deemed  sufficient  instead  of  a  fence  as  aforesaid.     Provid-  under  cuWva- 
ed,  that  the  northwest  branch  of  Cape   Fear  river,   bordering  on  ^^°'^- 
the  county  of  Brunswick,    shall  not  be   considered  such  a  water 
course,  and  all  persons   cultivating  lands  on  the  northeast  side  of 
the  said  northwest  branch   of  Cape  Fear  river,  and  neglecting  to 
inclose  the  same  with  a  sufficient  and  lawful  fence,  shall,  for  every 
crop  so  attempted  to  be  made,  forfeit  and  pay  one  hundred  dollars, 
one  half  to  the  poor  of  the  county  and  the  other  half  to  the  person 
suing  for  the  same,  to  be   recovered  by  action  of  debt  before  any 
jurisdiction  having  cognizance  thereof. 

2.  Upon  complaint  made  by  any  person  to  a  justice  of  the  peace  Damages  done 
of  any  county,  of  any  trespass   or  damage  done  by  horses,  mules  !?5' ®'°?^  ^^" 
or  other  stock  upon  his  inclosed  grounds,  such  justice  is  authorized  cient,  how  as- 
and  required  to  issue  a  summons,  directed  to  any  lawful  officer  of^^'''^'"®'i^°'i 
his  county,  commanding  him  to  make  known  to  the  owner  of  such 

horses,  mules,  or  other  stock,  of  such  complaint  and  the  time  of 
trial,  and  also  to  summon  two  freeholders,  unconnected  with  either 
of  the  parties,  to  appear  before  him,  who  after  being  sworn  by  the 
said  justice,  together  with  himself,  shall  view  and  examine  whether 
the  complainant's  fence  be  a  good  and  sufficient  fence  as  prescrib- 
ed in  the  first  section,  and  if  it  shall  appear  that  the  complainant's 
fence  be  good  and  sufficient  as  aforesaid,  to  ascertain  and  assess 
what  damages  he  has  sustained  by  means  of  the  trespass  aforesaid, 
and  certify  the  same  under  their  hands  and  seals  ;  and  if  the  own- 


1.  1777,  c.  121,  8.  2  — 1791,  c.  334,  s.  1. 

2.  1831,  C.  2,  S.  1.— 1777,  c.  121,  8.  3. 


284 


Injuries  done 
to  stock  by 

E arsons  not 
aving  a  legal 
fence,  how  as- 
certained and 
recovered. 


Either  party 
dissatisfied 
may  appeal. 
Proceedings 
thereon. 


Either  party 
may  summon 
witnesses. 

Penalty  on 
slaves  for  kill- 
ing stock  con- 
trary to  the 
provisions  of 
this  act. 


Master  or  over- 
seer to  pay  the 
damages  sus- 
tained. 


FENCES.  [Chap.  XLVIII. 

er  of  such  horses,  mules  or  other  stock  shall  not  make  full  satis- 
iaction  to  the  party  injured,  it  shall  be  the  duty  of  the  justice  of 
the  peace  aforesaid  to  enter  judgment  against  him  for  the  same 
and  issue  execution  forthwith,  unless  the  defendant  stay  the  same, 
which  he  shall  have  leave  to  do  as  in  other  cases. 

3.  If  any  person  shall,  with  guns,  dogs  or  otherwise,  unreason- 
ably chase,  worry,  maim  or  kill  any  horses,  mules  or  other  stock, 
or  cause  the  same  to  be  done,  when  trespassing  upon  his  inclosed 
grounds,  where  his  fence  shall  be  adjudged  insufficient,  such  per- 
son so  offending,  on  complaint  being  made  to  any  justice  of  the 
peace  ot  any  county  as  aforesaid,  shall  make  full  satisfaction  for  all 
such  damages  to  the  party  injured,  to  be  ascertained  and  recovered 
as  provided  in  the  last  preceding  section. 

4.  If  any  person  shall  think  himself  aggrieved  by  the  order  or 
determination  of  the  justice  of  tlfe^ace  and  freeholders  afore- 
said, he  may  appeal  therefrom  to  the  fl^^^unty  court  to  be  held 
lor  his  county,  he  giving  security  as"  in  other  cases  of  appeal, 
which  court  shall  be  authorized  and  empowered  to  take  cognizance 
ot  the  same,  as  m  other  cases  of  appeal  from  a  judgment  of  a  jus- 
tice of  the  peace,  and  the  trial  shall,  in  all  respects  be  de  novo, 
and  the  parties  shaU  be  permitted  to  plead  and  the  issues  made  up 
as  m  cases  of  actions  of  trespass.  Provided,  that  in  all  cases 
where  proceedings  shall  be  had  in  counties,  in  which  no  jury  trials 
are  had  in  the  court  of  pleas  and  quarter  sessions,  the  appeal  of 
either  party  shall  be  to  the  superior  court  of  said  county. 

_  5.  Either  party  may  summon  witnesses  to  appear  before  the 
justice  of  the  peace  and  freeholders,  and  also  in  court  as  in  other 
cases. 

6.  If  any  slave  shall  kill  any  cattle,  hog,  or  horse,  not  belong- 
mg  to  his  master,  m  any  cultivated  field,  which  is  not  fenced  at  all, 
or  which  IS  not  under  sufficient  and  lawful  fence,  he  or  she  shall  at 
any  time  within  six  months  after,  be  liable  to  be  apprehended  on  a 
warrant  from  any  justice  of  the  peace  of  the  county,  and  on  con- 
viction before  two  of  the  neighboring  justices  shall  be  subject  to 
and  receive  thirtynine  lashes  on  his  or  her  bare  back,  and  the  own- 
er or  overseer  of  such  slave,  so  offending  as  aforesaid,  shall  on 
prool  ot  the  offence  committed  by  such  slave,  pay  such  damages 
as  shall  be  adjudged  to  have  been  sustained  by  the  owner  of  the 
hog,  horse,  or  cattle,  so  killed  as  aforesaid,  under  the  same  rules 
and  restrictions  as  are  prescribed  in  the  preceding  parts  of  this 
act* 


3.  1831,  c.  2,  s.  3. 

4.  1831,  c.  2,  s.  2  and  3, 

5.  1831,  c.  2,  s.  1. 

6.  1791,  c.  354,  s.  2. 


iVote.— References  to  Adjudged  Cases. 
Sect.  2.  Nelson  vs.  Stewart,  2  Murph.  295. 


Chap.  XLIX.]  forcible  entry,  etc.  '2S5 

'"  CHAPTER  49. 

FORCIBLE  ENTRY  AND  DE- 
r  TAINER. 


AN  ACT  CONCERNING  FORCIBLE  ENTRY  AND  DETAINER. 


Section 

1 .  Forcible  entry  punishabk  by  indict- 

ment. 

2.  Summary    remedy    before    justices 

against  those  who  may  be  guilty  of 
forcible  entry  and  detainer. 

2.  Justices  to  have  jurors  summoned. 

4.  Penalty  on  the  sheriff  and  others  for 
failing  to  assist  the  justices. 


Section 

5.  No  restitution  to  be  awarded,  when 
the  party  has  been  in  possession 
three  j'ears. 

6.  Remedy  extended  to  tenants  for  term 
of  years. 

7.  Record  to  be  made  of  the  proceed- 
ings. 

1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

That  none  shall  make  any  entry  into  any  lands  and  tenements,  hut  p^^pj^g  g^i^y 
in  case  where  entry  is  given  by  the  law  ;  and  in   such  case,  not  punishable  by 
with  strong  hand  nor  with  multitude  of  people,  but  only  in  a  peace- ^'^  ictment. 
;  able  and  easy  manner  :  and  if  any  man   do  the   contrary,    and  be 
I  thereof  duly  convicted,  he  shall  be  punished  by  fine  and  imprison- 
ment, at  the  discretion  of  the  court  before  whom  he  is  tried. 

2.  Where  any  doth  make  forcible  entry  into  lands  and  tenements  Summary  rem- 
or  other  possession,  or  having  entered  peaceably  doth  hold  them  ^^J^^  against' 
forcibly,  upon  complaint  being  made  to  any  justice  or  justices  of  those  who  may 

I  the  peace,  it  shall  be  the  duty  of  the  said  justice   or  justices  to  foible ^ntry 

I  take  sufficient  power  of  the  county,  and  go  to  the  place  where  the  and  detainer. 

I  force  is  made  ;  and  there  or   at  some  other  convenient  place,  ac- 

f  cording  to  their  discretion,  whether  the  persons  making  such  forci- 

1  ble  entry  or  holding  forcibly  be  present,   or   else  departed  before 

I  the  coming  of  such  justice  or  justices,  it  shall  be  the  duty  of  the 

;  said  justice  or  justices  to  inquire  of  the  forcible  entry  or  forcible 

I  detainer  complained  of,  by  a  jury  of  good  and  lawful  men  to  be  by 

1  him  or  them  then  and  there  sworn  and  empanelled,  and  if  the  said 

]  jury  shall  find  the  force  as  charged,  it  shall  be  the  duty  of  the  said 

j  justice  or  justices  to  recognize  the  persons  convicted  of  such  force 

1  to    the    ensuing   superior    court,    to    answer  any   indictment  that 

!  may  be  preferred  against  them  ;  and  it   shall   further  be  the  duty  g 

'   of  the  said  justice  or  justices   to   cause  to  reseize  the  land   and  " 

i  tenements  so  entered  or  holden  as  aforesaid,  and  to  put  the  party, 

■   so  put  out,  in  full  possession  of  the  said  lands  and  tenements. 

3.  When  complaint  shall  be  made  as  aforesaid,   the  justice  or  i!aveTuro*r°s 

i  summoned. 

>         1.5  Rich.  2,  c.  8. 
I        2.  15  Rich.  2,  c.  2.-3  Hen.  6,  c.  9. 
•3.  8  Hen.  6,  c.  9. 


286 


FORCIBLE  ENTRY,  ETC.   [ChaP.  XLIX. 


Penalty  on  the 
sheriff  and 
others  for  fail- 
ing to  assist 
the  justices. 


No  restitution 
to  be  awarded, 
when  the  party 
has  been  in 
possession 
three  years. 


Remedy  ex- 
tended to  ten- 
ants for  term 
of  years. 


Record  to  be 
made  of  the 
proceedings. 


justices  to  whom  the  same  is  made  shall  issue  a  warrant  or  precept, 
directed  to  the  sheriff  or  other  proper  officer  of  the  county,  com- 
manding him  in  the  name  of  the  State  to  cause  to  come  before  such 
justice  or  justices,  at  such  time  and  place  as  shall  be  therein  men- 
tioned, sufficient  indiffisrent  freeholders,  dweUing  near  the  lands  so 
entered,  to  inquire  as  aforesaid  of  such  forcible  entry  and  detainer  ; 
and  if  the  sheriff  or  other  officer  shall  fail  to  execute  such  precept, 
he  shall  pay  a  fine  of  forty  dollars  for  every  default,  and  moreover 
be  subject  to  such  fine  for  contempt  as  the  said  justice  or  justices 
may  in  their  discretion  impose  ;  and  each  juror  summoned  as 
aforesaid  shall  be  subject  to  a  fine  of  twenty  dollars  for  failing  to 
attend  according  to  his  summons. 

4.  The  sheriff,  and  such  others  as  he  or  the  said  justice  or  jus- 
tices shall  order  and  command  for  that  purpose,  shall,  upon  pain  of 
imprisonment,  go  and  assist  the  said  justice  or  justices  in  arresting 
the  offenders  against  the  provisions  of  this  act,  and  also  in  causing 
restitution  to  be  made  of  the  lands  and  tenements  entered  orholden 
by  force  as  aforesaid. 

5.  No  restitution,  upon  any  indictment  or  finding  of  forcible 
entry  or  holding  with  force,  shall  be  made  to  any  person,  if  the 
person  so  indicted  hath  had  the  occupation  or  been  in  quiet  pos- 
session for  the  space  of  three  whole  years  together,  next  before 
the  day  of  such  indictment  so  found,  and  his  estate  therein  not 
ended  or  determined,  which  the  party  may  allege  for  stay  of  resti- 
tution, and  restitution  shall  stay  till  that  be  tried,  if  the  other  party 
will  deny  or  traverse  the  same  ;  and  if  such  allegation  be  found 
against  the  person  so  indicted,  he  shall  pay  such  costs  and  damages 
to  the  other  party  as  shall  be  assessed  by  the  judges  or  justices 
before  whom  the  same  shall  be  tried,  the  said  costs  and  damages  to 
be  recovered  and  levied  as  is  usual  for  costs  and  damages  in  judg- 
ments upon  other  actions. 

6.  Tenants  for  term  of  years  of  the  lands  or  tenements,  which 
shall  be  entered  upon  by  force  or  holden  from  them  by  force,  shall 
have  the  like  remedy,  and  the  proceedings  shall  be  the  same  in 
all  respects  as  herein  before  prescribed  for  tenants  of  a  freehold 
estate. 

7.  Of  all  the  proceedings  before  the  justice  or  justices  under 
the  provisions  of  this  act,  the  said  justice  or  justices  shall  make  a 
record,  and  return  the  same  to  the  superior  court  of  law  of  the 
county  in  which  the  same  shall  be  held,  to  be  kept  among  the  re- 
cords of  the  said  court. 


4.  15  Rich.  2,  c.  2. 

5.  31  Eliz.  c.  11. 

6.  21  Jac.  1,  c  15.' 

7.  Amendment. 


Note.  —  Refehences  to  Adjudged  Cases. 

Sect.  2,  State  vs.  Butler,  Con.  331.    Adam  vs.  Robinson,  1  Murph.  393. 
SrcT.  6.  State  vs.  Butler,  Tayl.  262. 


;cha.p.  l.] 


FRAUDS,  ETC. 


287 


CHAPTER   50. 

FRAUDS  AND  FRAUDULENT  CON- 
VEYANCES. 


AN  ACT  FOR  THE  PREVENTION  OP  FRAUDS  AND  FRAUDULENT  CON- 
VEYANCES.      .  ^  ,     ,         ^  /  -s  c--^ 

Section  /^^^.r'        Ci-     4-^. 

7.  Mode  of  proceeding  when  judgment 


Section 

■~   1.  All  conveyances  of  lands  or  goods, 

made  to  defraud  creditors,  shall  be 

void. 

2.  Conveyances  made  to  defraud  pur- 

chasers shall  be  void. 

3.  Penally  on  the  parties  to  fraudulent 

gifts,  grants,  &c. 

4.  Conveyances  bona  fide  upon   good 

considerations  not  to  be  affected. 

5.  What  proceedings  may  be  had  when 

the  property  of  a  debtor  is  fraudu- 
lently conveyed  to  injure  his  cre- 
ditors. 

6.  Where   the   party  fails    to   appear, 
^-  judgment  may  be  entered   by  de- 
fault. 


9. 


10. 


11. 


is  given  by  a  justice  of  the  peace. 
Contracts  for  the  sale  of  lands  and 

slaves  must  be  in  writing. 
Persons  removing  debtors  to  hinder, 

delay  or  defraud    creditors,  to  be 

liable  for  their  debts. 
Contracts  —  of  executors,  &c.  to  be 

answerable  out  of  their  own  estates 

—  or  to  charge  any  person  with  the 

debt,   &c.   of  another,  must  be  in 

writing. 
Contracts  with  the  Cherokee  Indians 

to  be  in  writing,  subscribed  by  two 

witnesses. 


'  1.  For  avoiding  and  abolishing  feigned,  covinous  and  fraudu- 
lent feoffments,  gifts,  grants,  alienations,  conveyances,  bonds, 
suits,  judgments,  and  executions,  as  well  of  lands  and  tene- 
ments, as  of  goods  and  chattels,  which  have  been,  and  still  are, 
contrived  and  devised  of  malice,  fraud,  covin  or  collusion,  to  the 
end,  purpose  and  intent  to  delay,  hinder  and  defraud  creditors  and 
others  of  their  just  and  lawful  actions,  debts  and  accompts  : 

Be  it  enacted  by  the    General  Assembly  of  the  State  of  JSTorth 
Carolina,  and  it  is  hereby  enacted   by  the  authority  of  the  same, 
That  all  and  every  feoffment,  gift,   grant,   alienation,  bargain  and  f^jIceToflands 
conveyance   of  lands,  tenements   and   hereditaments,   goods  and  or  goods,  made 
chattels,  or  any  of  them,  by  writing  or  otherwise,  and  all  and  every  ■°ofs''^shall*be'^" 
bond,  suit,  judgment  and  execution,  at  any  time  had  or  heretofore  void! 
made,  or  at  any  time  hereafter  to  be  had  or  made,  to  or  for  any  intent 
or  purpose  last  before  declared  and  expressed,  shall  be  from  hence- 
forward deemed  and  taken  (only  as  against  that  person  or  persons, 
his  or  their  heirs,  executors,  administrators  and  assigns,  and  every  of 
them,  whose  actions,  debts,  accounts,   damages,  penalties  and  for- 
feitures shall  release    by  such   covinous  or  fraudulent  devices  and 
practices  as  is  aforesaid,  or  shall  or  might  be  in  any  wise  disturbed, 
hindered,   delayed   or   defrauded)  to  be   clearly   and  utterly  void, 
frustrate,  and  of  no  effect  ;  any  pretence,  color,  feigned  consider- 


1.  1715,  c.  7,  s.  4.— 50  Edw.  3,  c.  6.— 13  Eliz.  c.  5,  s.  2. 


2S8  FRAUDS,  ETC.  [ChAP.  L. 

ation,  expressing  of  use  or  any  other  matter  or  thing  to  the  con- 
trary notwithstanding. 
Conveyances  2-  Every  conveyance,  charge,  lease,  or  incumbrance  of  any 
made  to  de-  lands  or  hereditaments,  made  for  the  intent  to  defraud  such  per- 
clmser^^shall  ^^^^  ^^  have  purchased  or  shall  purchase,  in  fee  simple,  or  for 
be  void.  lives  or  years,  the  same  lands  or  hereditaments,  or  to  defraud  such 

as  shall  purchase  any  rent  or  profit  out  of  the  same,  shall  be  deem- 
ed (only  as  against  that  person,   and  others  claiming  under  him, 
which  shall  purchase  for  good   consideration  the  same  lands  or 
hereditaments,  or  rents   or  profits  out  of  the  same,)  to  be  utterly 
void. 
Penalty  on  the       3.   And  all  and   every  the  parties   to  such  feigned,  covinous  or 
fraudulent        fraudulent  feoffments,    gifts,   grants,   conveyances,   bonds,   suits, 
^fts,  grants,     judgments  or  executions,  and  being  privy  and  knowing  of  the  same, 
or  any  of  them,  which  shall  wittingly   and  willingly  put  in  use, 
maintain  or  avow,  justify  or  defend  the  same,  or  any  of  them,  as 
true,  simple  and  done,  had  or  made  bona  fide  and  upon  good  con- 
sideration, or  shall  alien  or  assign  any  lands,  tenements,  goods  or 
things  before  mentioned,  to  him  or  them  conveyed  as  is  aforesaid, 
or  any  part  thereof,  shall  incur  the  forfeiture  of  the  real  value  of  the 
lands  and  tenements,   goods  and  chattels,   one   moiety  thereof  to 
the  State,  and  the  other  moiety  to  the  party  grieved  and  intended 
to  be  defrauded  thereby. 
bonlfide^'^uloii      ^'     Nothing  contained  in    the  first  and  second  sections  of  this 
good  consider-  act  shall  extend  to,  or  be  construed  to   impeach,   defeat   or  make 
affected"'^  ^°  ^  ^°^^  ^"X  Conveyance   or  assurance,   interest,   hmitation  of  use  or 
uses,  of,  in,  to,  or  out  of  any  lands  or  tenements,  goods  or  chat- 
tels heretofore  at  any  time  had  or  made,  or  hereafter  to  be  bona 
fide  made,  upon  and  for  good  considerations,  to  any  person  or  per- 
sons whatsoever,  not  having  notice  of  such  fraud. 
What  proceed-      5,   Upon  any  judgment  rendered,  or  which  shall   hereafter   be 
had  when  the    rendered,  in  any  court  of  record  in  this    State,  if  the    plaintiff  by 
property  of  a    himself,  his  agent  or  attorney  in  fact,  will  make  an    affidavit  stating 
ulentiy  convey-  that  the  defendant  hath  no  visible  property  to  satisfy  the    same,  or 
ed  to  injure  his  on  which  an  execution  can  be  levied,  and  that  he  or  she  hath  good 

crGciitors 

reason  to  believe  that  the  defendant  has  fraudulently  conveyed  his 
or  her  property  to  avoid  or  delay  the  payment  of  his  or  her  just 
debts,  or  that  some  other  person  or  persons  is  or  are  in  posses- 
sion of  property,  belonging  to  said  defendant,  and  conceals  the 
same,  the  court,  or  clerk,  in  case  the  said  court  is  not  sitting,  in 
which  the  said  judgment  hath  been  or  shall  be  rendered,  shall  and 
may  at  any  time  while  the  said  judgment  is  in  force,  order  a 
scire  facias  or  scire  f  aclases,  as  the  case  may  be,  to  be  issued 
'  against  and  served  upon  the  person  or  persons  claiming  any  estate, 

real  or  personal,  under  any  such  conveyance,  or  any  person  or 
persons  charged  in  the  affidavit  with  concealing  any  money,  goods 
or  other  estate  for  the  use  of  the  defendant,  or  for  the  purpose  of 

2.  27  Eliz.  c.  4,  s.  2. 

3.  1715,  c.  7,  s.  5. 

4.  1715,  c.  7.  s.  6.— 13  Eliz.  c.  5,  s.  6. 

5.  1806,  c.  700,  s.  1.— 1793,  c.  389,  s.  4. 


HAP.  L.]  FRAUDS,  ETC.  289 


(jnabling  him  or  her  to  avoid  or  delay  the  payment  of  his  or  her 
[ust  debts,  in  which  he  or  they  shall  be  commanded  to  appear  at 
the  next  succeeding  term,  and  declare  upon  oath  and  in  writing, 
whether  he  or  she  holds,  or  is  in  possession  of  or  claims  title  to 
my  money,  goods  or  other  estate,  real  or  personal,  under  anycon- 
i^eyance  made  by  the  defendant  upon  any  secret  trust,  and  whether 
oe  or  she  holds  or  is  in  possession  of  any  money,  goods  or  other 
Sstate,  or  was,  at  the  time  of  rendering  said  judgment,  or  at  any 
,;.ime  since,  in  possession  of  any  money,  goods  or  other  estate, 
under  any  secret  delivery,  to  hold  the  same  for  the  use  of  the 
defendant  or  any  other  person,  to  enable  him  or  her  to  avoid  the 
oayment  of  his  or  her  just  debts  ;  and  if  the  scire  facias  shall  be 
i'eturned  served  by  delivering  a  copy  to  the  party  against  whom  it 
,ssued,  or  by  leaving  a  copy  at  his  or  her  dwelling,  and  the  party 
ishall  appear,  the  court  shall  proceed  to  require  a  declaration  from 
lim  or  her  on  oath,  as  aforesaid,  and  if  the  party  so  called  into 
court,  shall  acknowledge  that  he  or  she  does  hold  or  claim  property 
bf  the  defendant  in  manner  aforesaid,  the  court  shall  and  may  order 
:he  same  to  be  delivered  up  or  made  subject  to  the  judgment  of 
the  plaintiff,  and  in  case  the  same  or  any  part  thereof  shall  be 
money,  or  in  case  any  part  of  the  property  shall  have  been 
used,  wasted,  or  destroyed  by  the  party,  the  court  may  give  judg- 
ment for  the  plaintiff  against  such  party,  for  the  amount  and  value 
of  the  money  then  held,  or  which  has  been  used,  as  also  for  the 
t^alue  of  any  other  property  (to  be  ascertained  by  a  jury)  used, 
wasted  or  destroyed,  and  acknowledged  as  aforesaid  to  have  been 
^^eceived,  in  manner  aforesaid,  for  the  use  of  the  defendant  or  any 
other  person  as  aforesaid  ;  but  in  case  any  person,  called  into  court 
in  manner  aforesaid,  shall  deny  that  he  or  she  holds,  or  is  in  pos- 
session of  or  claims  title  to  any  property  real  or  personal,  conveyed 
or  delivered  for  the  purpose  of  enabling  the  defendant  to  avoid,  or 
delay  the  payment  of  his  or  her  just  debts,  or  that  he  lias  held 
any  such  property  and  used  or  wasted  the  same,  the  plaiMiff  may^ 
iif  he  or  she  think  proper,  require  an  issue  to  be  made  up?  and  the 
ifacts  tried  by  a  jury,  as  in  other  cases,  and  judgment  shall  be  given 
accordingly  with  costs,  and  in  case  any  verdict  and  judgment  shall 
ibe  given  in  favor  of  any  person  called  on  under  any  scire  faciaSy 
or  in  case  he  or  she  shall  be  discharged  by  his  or  her  declai'ation 
ion  oath,  without  the  trial  of  any  issue,  he  or  she  shall  be  entitled 
to  the  same  costs  as  if  he  or  she  had  been  originally  sued  in  said 
action. 

6.   Tn  case  any  scire /acias^  shall  be  returned  served  in    manner  Where  the 
iherein  directed,  and  the  party  against  whom  the  same  issued  shall  appear  jud?- 
fail  to  appear,  the  plaintiff  may  enter  against  him  or  her  ajudgment  meni  may  be 
by  default,  but  before    executing  any  writ    of  inquiry,  or    entering  ^^^j^^'^  "^^ 
up  any  final  judgment,  a  second  scire  facias  shall  issue  to  the  party, 
requiring  him  or  her  to  appear  and  show  cause  why  final  judgment 
should  not  be  entered  up  for  the  amount  of  the  plaintiff's  demand, 

6.   1806,  c.  700,  s.  2.  . 

VOL.  I.  37 


290  FRAUDS,  ETC.  [ChaP.  L. 

or  the  amount  which  the  plaintiff  shall  in  his  affidavit  state  to  have 
been  in  the  hands  or  possession  of  such  party,  for  which  amount 
upon  the  service  of  said  scire  facias,  in  manner  herein  directed, 
the  plaintiff  may  enter  up  judgment  against  said  party  with  costs 
as  aforesaid. 
Mode  of  pro-  7.  When  any  judgment  shall  be  given  by  any  justice  of  the 
ceedmgwhen    peace  out  of  court,  the  plaintiff  may  make  an  affidavit,  in  manner 

TU.QS'IIleTlt  IS  -^  X  B*  ' 

gfiven  by  a  jus-  herein  directed  in  courts  of  record,  upon   which  he  shall  be  en- 
tice of  the        titled  to  carry  up  to  the  next  succeeding  court  of  pleas  and  quarter 
sessions,  to  be  held  for  the  county  in  which  said  judgment  is  given, 
with  the  said  affidavit,  the  warrant,  judgment,  and   all  papers   re- 
lating thereto,  and  upon  which  the  said  court  shall  and   may  issue 
a  scire  facias,  in  manner  herein  directed,  which  shall  be  proceeded 
on  in  the  same  manner  as  if  the  suit  had  been  originally  instituted 
in  said  court. 
Contracts  for         8.   All    Contracts  to  sell  or  convey  any   lands,  tenements,  or 
the  sale  of  land  j^gj.g(jjj-aj-fjgj-,{g    or  any  interest  in  or  concerning  them,  or  any  slave 
must  be  in       or  slaves,  shall  be  void  and  of  no  effect,  unless  such  contract,  or 
writing.  some  memorandum  or  note  thereof,  shall  be  put  in  writing,  signed 

by  the  party  to  be  charged  therewith,  or  by  some  other  person, 
by  him  thereto  lawfully  authorized,  except  nevertheless  contracts 
for  leases  not  exceeding  in  duration  the  term  of  three  years. 
Persons  rcmov-  9.  If  any  person  or  persons  shall  remove,  or  shall  aid  and  assist 
hdndet^^dela^°  ^"  removing,  any  debtor  or  debtors  out  of  any  county,  in  which 
or  defraud  he,  she  or  they  shall  have  resided  for  the  space  of  six  months  or 
ifiw''r'^^'.i*°*^'^nnore,    with  an   intent  by  such   removing,  aiding  or   assisting,  to 

liable  lor  their      ,    ,      '       .     ,  i    r         i     i  t  r  i      i    .  i    i 

debts.  delay,  huider  -or  delraud  the  creditors  oi  such  debtor   or  debtors, 

or  any  of  them,  such  person  or  persons,  so   removing,   aiding  or 
assisting,   shall,   they  and  their   executors   and  administrators,  be 
liable  to  pay  all  debts,   v/hich  the  debtor  or   debtors   so  removed 
shall    or    may  justly  owe  in  the   county  from  which  he    was  so 
removed,  which  debts  may  be  recovered  by  the  creditors  respec- 
tively, w^ho   may  be  entitled   thereunto,  their  executors   or  admin- 
istrators, by  an   action   on   the   case,    provided  such  suit  shall  be 
commenced  within  three   years   from  and   after  the  time  of  such 
removal. 
Contracts— of        1^.   No  action  shall  be  brought,  whereby  to  charge  any  executor 
executors,  &c.  or  administrator  upon  a  special  promise  to  answer  damages  out  of 
able'^oa^^of       l^is    own    estate,   or   to   charge  the    defendant    upon    any  special 
their  own  es-    promise    to    ansvver  the  debt,  default  or  miscarriage  of  another 
cha^rge  any       pcrson,   unless   the   agreement  upon  which  such  action  shall  be 
person  with      brought,  or  some  memorandum  or  note  thereof,  shall  be  in  writing 
of\nother, '^     and  signed  by  the   party  charged  therewith,   or  some  other  person 
must  be  in       thercunto  by  him  lawfully  authorized. 

Contracts  with      H-   AH   contracts   and  agreements  of  every  description,  made 
the  Cherokee    after  the  eighteenth   day  of  May  one  thousand  eight  hundred  and 

Indians  to  be  °  •'        •'  ° 

7.  1806,  c.  700,  s.  3.  i. 

8.  1819,  c  1016. 

9.  1820,  c.  1063. 

10.  1826,  c.  10. 
n.  1836,  c.  8. 


Chap.  LL]  gaming  contracts.  291 

thirtyeight,  with  any  Cherokee  Indian,  or  any  person  of  Cherokee  in  writing,  sub- 
Indian  blood,  within  the  second  degree,  for  an  amount  equal  to  witMs'seJ  '^^'^ 
ten  dollars  or  more,  shall  be  null  and  void,  unless  some  note  or 
memorandum  thereof  be  made  in  writing  and  signed  by  such 
Indian  or  person  of  Indian  blood,  or  some  other  person  by  him 
authorized,  in  the  presence  of  two  creditable  witnesses,  who  shall 
also  subscribe  the  same. 


Note. — Refehences  to  Adjudged  Cases. 

Sect.  1.  Sherman  vs.  Russell,  1  Car.  Rep.  467.  O'Daniel  vs.  Crawford,  4  Dev, 
197.     Jones  vs.  Youn";,  1  Dev.  and  Bat.  353. 

Sect.  2.  Bellas.  Blaney,  2  Murph.  170. 

Sect.  5.  McEwen  vs.  Benning,  1  Hawks,  474.     Wintry  vs.  Webb.  3  Dev.  27. 

Sect.  8.  Clioat  vs.  Wright,  2  Dev.  239.  Ellis  vs.  Ellis,  1  Dev.Eq.  ISO.  Tate  vs., 
Greenlee,  4  Dev.  149.  Miller  vs.  Irvine,  1  Dev.  and,  Bat.  103.  Bakeries.  Carson,  I 
Dev.  and  Bat.  Eq.  381. 

Sect.  10.  Cooper  vs.  Chambers,  4  Dev.  261, 


CHAPTER  51. 

GAMINU  CONTRACT 


AN  ACT  CONCERNING    GAMING. 


j        Be  it  enacted  by   the  General  Assembly  of  the  State  of  JS'^orth 

l(  Carolina,  and  it  is  hereby  enacted   by  the  authority  of  the  same, 

[  That  every  promise,  agreement,    note,  bill,   bond,  or   other  con-  to°^YmmmY 

.t  tract  to  pay,   dehver  or   secure   money  or  other  thing,  won   or  upon  any  kind 

/  obtained  by  playing  at  cards,  dice,    tables,  tennis,  bowls  or  other  "gjjff^^"|^  °'' 

fi  games,  or  horse  racing,  or  by  wagering  or  betting  on  either  of  the  purpose  of 

il  parties,  who  shall  play  at  such  games  or  horse  racing,  or  to  repay  ^^""°5'  '*^°^"- 

3  or  secure  money  or  other  thing  lent  or  advanced  for  that  purpose, 

j  or  lent  or  advanced,  at  the  time  of  such  gaming,  playing,  betting, 

'I. horse  racing,    laying    and    adventuring,  shall  be  void  ;  and  every 

■  conveyance  or  lease   of  lands,    tenements  or  hereditaments,  sold,  ^^'^"'""^^^ '^°^'^ 
i  demised  or  mortgaged,  and  every  sale,  mortgage  or  other  transfer 

1  of  slaves,  or  other  personal  estate,  to  any  person  or  for  his  use,  to 

■  satisfy  or  secure  money  so  won,  lent  or  advanced,  on  due  proof 
ji  made  before  any  jurisdiction  having  cognizance  thereof,  shall  be 
U  and  is  hereby  declared  void. 


I 


1-  1738,  c.  284.— 1310,  c  796. 


'■  Note. —  References  to  Adjudged  Cases. 

Stowell  vs.   Guthrie,  2  Hay.  297.     Hodges  vs.  Pitman,  2  Car.  L.   Rep.    394.     Wood 
'vs.  Wood,  3  Murph.  172.     Forrest  vs.  Hart,  ib.  458      Turner  vs.  Peacock,  2  Dev.  303. 
Hedspeth  vs.  Wilson,  2  Dev.  372.     Dunn  vs.  Holloway,  1  Dev.  Eq.  322. 


29-3 


GENERAL  ASSEMBLY. 


[Chap.  LII, 


CHAPTER  52. 


GENERAL.  ASSEMBLY. 

AN  ACT  CONCERNING  THE  GENERAL  ASSEMBLY  OF  THE  STATE  OP 

NORTH  CAROLINA. 


Section 


1.  When   and  where   the   election   for 

members  of  the  General  Assembly 
shall  be  held. 

2.  The  county  courts  may  alter,  estab- 

lish or  discontinue  separate  places 
of  election. 

3.  Time  and  place  of  holding  the  elec- 

tions to  be  advertised  by  the  sheriff. 

4.  County  courts  to  appoint  inspectors 

for  every  separate  election  precinct. 

5.  Clerk  to  furnish  the  sheriff  with  a 

list  of  the  inspectors,  and  the  sheriff 
to  notify  them — If  the  court  fail  to 
appoint  inspectors,  or  they  refuse  to 
act,  the  vacancies  how  to  be  sup- 
plied. 

6.  Sheriff  to  furnish  boxes  for  receiving 

the  tickets — Tickets  how  to  be  re- 
ceived and  put  into  the  boxes. 

7.  Persons  qualified  to  vote  how  to  give 

in  their  tickets — List  of  voters  to 
be  kept — How  the  boxes  are  to  be 
opened  and  the  tickets  counted  out. 

8.  Manner  in  which   the  statement  of 

the  polls  shall  be  made  up,  return- 
ed, compared,  and  the  persons  de- 
clared duly  elected. 

9.  Manner  in  which  the  statement  of 

the  polls  shall  be  made  out  in  the 
senatorial  districts  —  Where  the 
polls  of  the  different  counties  com- 
posing the  district  shall  be  com.par- 
ed — and  how  the  persons  elected 
shall  be  so  declared. 

Sheriffs'  pay  for  attending  to  com- 
pare the  polls  in  the  senatorial  dis- 
tricts. 

Persons  offering  to  vote,  may  be 
required  to  swear  to  their  qualifica- 
tions, of  which  the  inspectors  shall 
be  the  sole  judges. 

In  case  of  vacancies  occurring  before 
the  meeting  of  the  General  Assem- 
bly, it  shall  be  the  duty  of  the  sher- 
iff to  notify  the  governor  thereof. 
13.  Persons  elected,  and  refusing  to  ac- 


10 


11 


12. 


BECTION 


to    notify   the 


to  order  a 


cept,   or   resignmg, 
governor. 

14.  Governor,  in  such  cases 

new  election. 

15.  Elections  held  under  a  writ  from  the 

governor,  or  speaker  of  either  house, 
to  be  held  as  other  elections. 

16.  Elections,  at  what  time  to  be  opened 

and  closed. 

17.  Sheriff  to  furnish  persons  elected,  if 

requested,  with  a  copy  of  the  list  of 
votes — Penalty  on  sheriffs  for  fail- 
ing to  do  their  duty  in  regard  to 
elections. 

18.  Candidate  not  elected,  to  be  furnished 

with  a  statement  of  the  polls,  upon 
paying  two  dollars  for  the  same. 

19.  When  no  sheriff,  the  coroner  to  hold 

the  election — When  there  is  neither 
sheriff  nor  coroner,  three  justices 
may  appoint  a  freeholder  for  that 
purpose. 

20.  Penalty  on  persons  not  qualified,  for 

voting  at  elections. 
Musters  not  to  be  on  the  day  and 

at  the  place  of  any  election. 
Penalty  for  bribing  an  elector  to  give 

his  vote. 
Penalty  for  treating  at  elections. 
Sheriff  to  advertise  the  two  preceding 

sections  against  bribing  and  treating 

at  elections. 
Time  of  the  meeting  of  the  General 

Assembly. 
Governor  and  council  may  convene 

the  General  Assembly  at  other  than 

its  usual  meetings. 
Members  of  the  General  Assembly  to 

take  oaths  to  support  the  constitu- 
tion of  this  State  and  of  the  United 

States — Penalty    on    members   fo; 

giving  any  gratuity,  &c.  to  secure 

their  election. 
23.  Persons  elected  shall  attend  at  thd 

meeting  of  the  General  Assembly. 
29.  Penalty  on  persons  elected  for  faiUng 


21. 

22. 

23. 
24. 


26. 


S7 


Chap.  LII.[ 


GENERAL  ASSEMBLY. 


293 


Section 

to  perform  the  duties  of  their  ap- 
pointment. 

30.  Members  to  have  freedom  of  speech 

and  to  be  protected  from  arrest,  &c. 

31.  Sheriffs  to  make  return  to  the  Gener- 

al Assembly,  of  members   elected 
from  their  counties  to  serve  therein. 

32.  How  any  person  contesting  the  seat 

of  a  member  shall  proceed. 

33.  Penalty  on  witnesses  for  failing  to 

attend  and  give  evidence  in  con- 
tested elections. 


Section 

34.  Pay   of  witnesses   for  attending  in 

such  cases. 

35.  Persons   desirous   of  procuring  the 

passage  of  a  private  law,  how  to 
proceed. 

36.  Acts  of  the  General  Assembly,  when 

to  be  in  force. 

37.  'J'he  journals  of  the  two  houses  to  be 

deposited  in  the  office  of  the  secre- 
tary of  state,  who  shall  certify  cop- 
ies thereof  when  required. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina,    and  it  is  hereby  enacted  by  the  authority  of  the  same, 

That  the  election  for  members  to  the  Senate  and  House  of  Com-  When  and 
mons  of  the  General  Assembly  shall   be   held   for  the  respective  tion  for  mem- 
districts  and  counties,  at  the  places  at  which  they  are  now  held,  or  bers  of  the 
at  which  they  may  be  directed  hereafter  to  be  held,  in  manner  as  sembiy  shall 
hereinafter  prescribed,  on  the  second  Thursday  in  August,  in  the  be  held. 
year  one   thousand   eight  hundred  and  thirtyeight,  and  every  two 
years  thereafter  :  Provided,  that  if  by  any  private  or  local  law  the 
time  of  holding  the  election  for  any  county  is  different  from  that 
above  mentioned,  the  election  shall  be  held  for  such  county  at  the 
time  at  which  it  is  so  prescribed  to  be  held  in  the  year  eighteen 
hundred  and  thirtyeight,  and  every  two  years  thereafter. 

2.  The  several  courts  of  pleas  and  quarter  sessions   shall   have  The  county 

/.,,  ..  >-  .      .  ^^,  ...  „     ,      courts  may 

lull  power  and  authority,  a  majority  01   the  acting  justices  ot   the  alter,  establish 
county  beina;  present,  to  alter,  fix,  estabhsh,  discontinue,  or  create  or  discontinue 

•'  ,  1  r     1        •         •        1     •  •  •       separate  places 

anew,  such  separate  places  oi  election  in  their  respective  counties  of  election, 
as  the  said  courts  may  from  time  to  time  deem  expedient,    thirty 
days   notice  having  been  given  in  three  or  more  public  places  and 
at  the  court  house  of  the  intended  application  for  the  same. 

3.  The  sheriff  or  other  returning  officers  of  the  respective  coun-  '^f?^^,^-^'^  'P}t^'^' 

1     11       1  •         1        •  11  /•      1        •  ^1  .  of  holding  the 

ties  shall  advertise  the  time  and  places  ot   election,  at  the   several  elections  to  be 
places  where  the  same  is  to  be  held,  at  least  twenty  days  before  f^J sheriff  ^^ 
such  election. 

4.  The  court  of  pleas  and  quarter  sessions  for  every  county.  County  courts 
at  the  court  preceding  every  election,  shall  appoint  one  justice  of  gpg^j!J^°g"fQj°' 
the  peace,  and  as  many  freeholders  as  may  be  deemed  necessary,  every  separate 
as  inspectors  to  superintend  the  election,  at  the  several  places  where  cinct'.""^  ^"^^ 
the  same  is  to  be  held,  whose  duty  it  shall  be  to  attend,  at  the  places 

for  which  they  are  appointed,  on  the  day  of  election,  and  who  shall 
be  sworn  by  the  sheriff",  or  in  case  of  his  absence  by  some  justice 
of  the  peace,  to  conduct  the  election  fairly  and  impartially  accord- 
ing to  the  constitution  and  laws  of  the  State. 

5.  The  clerk  of  the  court  of  pleas  and  quarter  sessions  shall,  ish  the  sheriff 
immediately  after    the   court  preceding  the  election,  furnish  the 


1.  1739,  c.  307,  amended. 

2.  1819,  c.  1000.— 1830,  c.  35.— 1832,  c.  IS. 

3.  1777,  c.  116,  s.  2. 

4.  1777,  c.  116,  s.  3.  — 1812,  c.  842,  s.  1. 

5.  1777,  c.  lie,  s.  3. 


i«k 


294 


GENERAL  ASSEMBLY. 


[Chap.  LII. 


with  a  list  of 
the  inspectors, 
and  the  sheriff 
to  notify  them. 

If  the  court  fail 
to  appoint  in- 
spectors, or 
they  refuse  to 
act,  the  vacan- 
cies how  to  be 
supplied. 


Sheriff  to  fur- 
nish boxes  for 
receiving  the 
tickets. 
Tickets  how 
to  be  received 
and  put  into 
the  boxes. 


Persons  quali- 
fied to  vote, 
how  to  give  in 
their  tickets. 


List  of  voters 
to  be  kept. 


How  the  boxes 
are  to  be  open- 
ed and  the 
tickets  counted 
out. 


Manner  in 
which  the 
statement  of 
the  polls  shall 
be  made  up, 
returned,  com- 
pared, and  the 
persons  de- 
clared duly 
elected. 


sheriffs  of  the  respective  counties  with  a  list  of  the  persons  ap- 
pointed to  act  as  inspectors  of  the  polls  at  the  several  places  of  elec- 
tion, and  the  sheriff  shall  notify  such  persons  of  their  appointment, 
at  least  twenty  days  before  the  day  of  election.  Should  the  court 
fail  to  make  such  appointment,  or  if  the  court  should  not  have  ap- 
pointed a  sufficient  number  of  inspectors,  or  those  appointed  should 
die  or  refuse  to  act,  then  it  may  be  lawful  for  the  sheriff,  with  ad- 
vice of  three  justices  of  the  peace,  or,  if  none  be  present,  three 
respectable  freeholders,  to  appoint  inspectors  to  hold  the  election, 
who  when  so  appointed  and  duly  sworn  shall  have  the  same  au- 
thority as  if  appointed  by  the  court. 

6.  The  sheriff  or  the  returning  officer  shall,  on  the  day  and  at 
the  places  for  holding  each  respective  election,  be  provided  with 
small  boxes,  one  for  receiving  the  ballots  for  the  senator,  and  the 
other  for  receiving  the  ballots  for  members  of  the  house  of  com- 
mons, and  the  returning  officer  or  his  deputy,  which  deputy  shall 
in  all  cases  be  sworn  before  proceeding  to  act,  shall  receive  the 
tickets  in  presence  of  the  inspectors,  and  put  each  ticket  in  its 
proper  box  ;  and  all  the  boxes  shall  be  locked  or  otherwise  well 
secured,  until  the  election  shall  be  finished  :  Provided,  that  if  no 
returning  officer  or  his  deputy  shall  be  present  at  any  separate 
place  of  election,  the  tickets  shall  be  received  by  one  of  the  in- 
spectors, in  the  presence  of  the  others,  and  put  into  their  proper 
boxes  in  manner  as  aforesaid. 

7.  Every  person  quahfied  to  vote,  in  manner  directed  by  the 
constitution  of  this  State,  who  shall  attend  for  that  purpose  at  any 
election,  shall  give  to  the  returning  officer  in  presence  of  the  in- 
spectors, or  in  the  absence  of  the  returning  officer  to  one  of  the 
inspectors,  a  ticket  or  scroll  of  paper  rolled  up,  in  which  shall  be 
written  the  name  or  names  of  the  person  or  persons  for  whom  he 
intends  to  vote,  which  ticket  shall  be  put  into  the  proper  box,  in 
manner  before  directed,  and  at  the  same  time  two  of  the  inspec- 
tors shall  take  down,  in  separate  lists,  the  name  of  every  person 
voting,  distinguishing  those  who  shall  vote  for  senators  in  one  list, 
and  those  for  county  members  in  the  house  of  commons  in  a  sec- 
ond, and  when  the  election  shall  be  finished,  the  returning  officer 
and  the  inspectors  shall,  in  presence  of  such  of  the  electors  as 
may  choose  to  attend,  open  the  boxes  one  after  another,  and  num- 
ber the  ballots  of  one  box  before  they  shall  open  another,  at  the 
same  time  reading  aloud  the  names  of  the  persons  who  shall  ap- 
pear in  each  ticket,  and  if  there  shall  be  two  tickets  rolled  up  to- 
gether, or  if  any  ticket  shall  contain  the  names  of  more  persons 
than  such  elector  has  a  right  to  vote  for,  in  either  of  these  cases 
such  ticket  shall  not  be  numbered  in  taking  the  ballots,  but  shall 
be  adjudged  void. 

8.  Immediately  after  the  close  of  the  polls  at  each  and  every 
place  of  election,  a  correct  statement  of  the  number  given  for 
each  candidate,  and  also  the  names  of  the  persons  voting,  shall  be 
made  out  and  signed  by  the  inspectors,  and  then  sealed  and  direct- 

6.  177-7,  c.  116,  s.  4.— 1812,  c.  842,  S.  2. 

7.  1777,  c.  116,  s.  5.  • 
S.  1777,  c.  116,  s.  5,  amended. 


Chap.  LIL]  general  assembly.  295 

ed  to  the  sheriff,  which  shall  be  handed  by  some  one  of  the  in- 
spectors appointed  for  the  purpose  to  the  sheriff  of  the  county,  at 
the  court  house  of  said  county,  on  the  next  day,  between  ten 
o'clock  A.  M.  and  four  o'clock  P.  M.,  and  on  the  returns  being 
made  to  the  sheriff  or  his  deputy,  he  shall,  in  the  presence  of  the 
inspectors,  who  carried  their  respective  polls,  proceed  to  add  the 
number  of  votes  to  him  returned,  and  the  persons  having  the 
greatest  number  of  votes  shall  be  deemed  duly  elected  ;  should 
any  two  persons  have  an  equal  number  of  votes,  the  sheriff  shall 
decide  by  his  casting  vote  the  person  duly  elected. 

9.    The  provisions  contained  in  the  last  section  shall  be  appli- 
cable  to  all  elections  for  members  of  the  senate,  where  the  senate-  which  the 
rial  district  is  composed  of  not  more  than  one  county,  as  well  as  statement  of 

^         .  P  '     ,  r    1       ^  c  1.1  the  polls  shall 

to  elections  for  members  of  the  house  of  commons  ;  but  where  any  be  made  out  in 
senatorial  district,  as  laid  off  by  the  amended  constitution,  is  com- the  senatorial 

•  •  -•    districts 

posed  of  more  than  one  county,  the  sheriff  or  other  returning  offi- where  the  polls 
cer  of  each  of  the   counties,    composing   such  senatorial  district,  of  the  different 
shall  after  receiving  the  returns  from  the  inspectors,  as  prescribed  posing  the  dis'- 
in  the  last  section,   meet  on  the  third   Thursday  in   August,  after  tricts,  shall  be 
each  election,  at  the  following  places,  in  their  respective  districts,  how^'the  per^" 
for  the  purpose  of  comparing  the   polls  in   the  said   district,  viz  :  sons  elected 
In  the  first  district,  composed  of  the  counties  of  Pasquotank  and  ciared. 
Perquimons,  at  Woodville,  on  Little  river  ;  in  the  second  district, 
composed  of  the   counties   of  Camden   and   Currituck,  at   Indian 
Town,  Dr  Marchant's  store  ;  in  the  third  district,  composed  of  the 
counties  of  Gates  and  Chowan,  at  the  house  or  Thomas  J.  Mil- 
ler, in  Gates  county  ;  in  the  fourth  district,  composed  of  the  coun- 
ties of  Washington  and  Tyrrel,  at  Columbia,  in   Tyrrel  county  ; 
in  the  seventh  district,  composed  of  the   counties  of  Greene  and 
Lenoir,  at  Snow  Hill,  in  the  county  of  Greene  ;  in  the  nineteenth 
district,    composed    of   the   counties   of  Beaufort  and    Hyde,   at 
Leechville,  in   Beaufort  county  ;  in  the   twentieth   district,  com- 
jDOsed  of  the  counties   of  Jones  and   Carteret,   at  Buckner  Hill's 
mill,  in  Carteret  county  ;  in  the  thirtieth  district,  composed  of  the 
counties  of  Brunswick,    Bladen  and   Columbus,  at  the  house   of 
David    Taylor,  senior,  in   Brunswick  ;  in   the   thirtyfirst  district, 
composed  of  the  counties  of  Robeson  and  R.ichmond,  at  Dr  John 
Malloy's,  in  Richmond  ;  in  the  thirtyfourth  district,  composed  of 
the  counties  of  Moore   and   Montgomery,  at  the  house  of  Daniel 
Chisholm,  in  Moore  ;  in  the  fortyfourth  district,  composed  of  the 
counties  of  Wilkes  and  Ashe,  at  Wilkesborough  and  Jefferson  al- 
ternately ;  in   the  forty  fifth  district,  composed  of  the  counties  of 
Burke  and   Yancey,    at    David    Chandler's,    North   cove,   Burke 
county  ;  and  in  the  fortyninth  district,    composed  of  the  counties 
of  Buncombe,  Haywood  and   Macon,  at  Waynesville,  Haywood 
county.   Provided  ahoays,  that  if  any  accident  shall  happen  to  either 
of  the  returning  officers,  which  may  prevent  either  or  any  of  them 
from  meeting  on  the  day  aforesaid,  the  returns  of  each  and  every 
officer  shall  be  i-eceived  on  the  day  following.    And  the  sheriff  or 
other  returning  officer,  failing  to  attend  at  the  time  and  place  above 

9.   1S35,  c.  1,  s.  1  and  3. 


296  GENERAL  ASSEMBLY.  [ChAP.  LIl. 

mentioned,  shall  forfeit  and  pay  the   sura  of  five  hundred  dollars, 
to  be  recovered  for  the  use  of  the  State,  upon  due  proof  thereof, 
in  any  court  of  law,  having  jurisdiction  thereof,  by  action  of  debt 
in  the  name  of  the  State,  and  shall  moreover  be  subject  to  indict- 
ment, and  fined  at  the  discretion  of  the  court.    And  when  the  sher- 
ifl:s  or  other  returning  officers  shall  be  convened  as  aforesaid,  the 
poll  for  the   different   counties,  shall  by  the  said  sheriffs  or  other 
returning  officers,  in  the  presence  of  three  justices  of  the  peace, 
or  if  said  justices  of  the  peace  cannot  be  conveniently  procured, 
then  in  the  presence  of  three  freeholders,  who  are  to  be  summon- 
ed by  the  sheriff  or  other  returning  officer  of  the  county,  where 
they  shall  meet  for  that  purpose,  be  examined  and  compared,  and 
a  certificate  under  the  hands   and  seals  of  said   returning  officers 
shall  be  given  to  the  candidate  in  each  district,  for  whom  the  great- 
est number  of  votes  shall  have  been  given  in  said  district.     But  if 
two  or  more  candidates  shall  have  an  equal  number  of  votes,  the 
said  returning  officers   shall  determine  which  of  them  shall  be  the 
senator  ;   and  if  no  decision  is  made   by  them,  then  they  shall  de- 
cide the  same  by  drawing  in  like  manner  as  the  grand  jury  is  drawn 
for  in  the  superior  court. 
SherifFs'  pay         10.   Every  sheriff  or  other  returning  officer  shall  be  allowed  the 
to'^compare"  the  S"™  of  two  dollars  and  a  half,  for  every  thirty  miles  travelling  to  and 
polls  in  the       returning  from  the  place  of  comparing  the  polls,  and  the  same  sum 
tricts°"^    ^^"  ^'^^  every  day  he  shall  necessarily  attend  for  the  purpose  of  com- 
paring tiie  polls,  and  also  his  ferriages,  which  shall  be  paid  by  the 
treasurer  of  the  State  on  affidavit  of  the  sheriffs  or  other  returning 
officers,   which  affidavit  may  be  made   before  any  justice  of  the 
peace  within  the  State. 
^^J^to"votfmav      ^^'   ^^^ry  pcrsou,  before  he  shall  be  admitted  to  give  his  vote 
be^required  to    at  any  election,  shall,  if  required  by  the  inspectors  or   any  one  of 
quaUfication^'^of  ^'^^"^'  swear  (or  affirm  as   the   case  may  be)   that  he   is   quahfied 
which  the  in-    according  to  the  constitution,  and  that  he  hath  not  before  voted  at 
beThelole^^^    such  election  ;  and  the  inspectors  at  such  election  shall  have  the 
judges.  sole  and  exclusive   right  to  judge  of  the  qualification  of  voters, 

except  where  there  is  an  equal  division  of  opinion  between  them, 
in  which  case  the  sheriff  or  other  returning  officer  shall  decide. 
In  case  of  va-        12.   If  any  person,  who  shall  be  elected  to  represent  any  county 
rhlg  blf°re  the  ^r  district  in  the  General  Assembly  of  this  State,  shall,  before  the 
meeting:  of  the  meeting  of  the   said   General  Assembly,    die,   or  from   any  other 
11  "It  shairbe" '^^"^^  ^^^^'   refuse,   or  neglect,   or   delay,  to    accept  of  his  said 
the  duty  of  the  appointment,  it  shall  be  the  duty  of  the  sheriff  of  the  county,  in 
tify"he^eover-    ^^hich  the   Said  pcrson  so   elected   resides  or  did  reside,  to  notify 
nor  thereof.       the  governor  of  the  same  forthwith  :  and  the  said  sheriff,  for  neg- 
lect of  duty  herein,  shall  be  subject  to  indictment  in  any  court  of 
record,  and  on  conviction  shall  be  fined  or  imprisoned   at  the  dis- 
cretion of  the  court. 
Persons  elected      13.   If  any  person,  who  shall  be  elected  to  represent  any  county 
acceptforrf-^°  Or  district  in  the  General  Assembly  of  this  State,  shall  before  the 

signing,  to  no- 
tify the  gover-        10.  1335,  c.  l,s   2. 
Il°'"-                             11.  1777,  c.  116,  S.  7.— 1833,  c,  9. 

12.  1S35,  c.  5,  s.  1. 

13.  1835,  c.  5,  s.  2.  r 


Chap.  LIL]  general  assembly.  297 


uu 


meeting  of  the  said  General  Assembly  resign,  refuse  or  decline  to 
accept  and  attend  the  duties  of  his  said  appointment,  it  shall  be  the 
duty  of  such  person  immediately  to  notify  the  governor  in  writing 
such  his  determination. 

14.  In  all  vacancies,  that  shall   occur  by  death,  resignation  or  Governor,  in 
otherwise,  before  the   meeting  of  the  General  Assembly,  it  shall  order  a  new 
be  the  duty  of  the  governor,  upon  being  notified  thereof  as  afore-  election. 
said,  to  issue  a  writ  of  election   to  the  sheriff  or  sheriffs  of  the 
county  or  district,  wherein  such  vacancies   shall  have  occurred, 
commanding  him  or  them  to  hold  an  election  for  a  member  of  the 
General    Assembly,    to    supply    such  vacancy,  at  a  certain  time 
therein  to  be  specified,  and  under  the  same  rules  and  regulations  as 

are  prescribed  for  holding  elections   at   the   regular  times   in  said 
county  or  district. 

15.  Every  election,  held  in   pursuance  of  a  writ  from  the  p-qv- ^^^*^'^°°®  ^.^^'^ 

J    ^  '  ,     ^  ,  ^         under  a  writ 

ernor,  or  by  virtue  of  any  writ  from  either  house  of  the  General  from  the  gov- 
Assembly,  shall  be  conducted  in  like  manner,  as  the  regular  bien- '^^''J' °j[j^P^^'^' 
nial  elections,  so  far  as  the  particular  case  can  be  governed  by  the  house,  to  he 
general  rules,  and  shall  to  all  intents  and  purposes  be  as  legal  ^"d  ^Yg^^.^nr^^"^ 
vahd,  and  subject  the   officers   and  persons   elected   to  the  same 
penalties  and  liabilities,  as  if  the  same  had  been  held  at  the  time, 
and  according  to  the  rules  and  regulations  prescribed  for  the  regu- 
lar biennial  elections. 

16.  Every  election  shall  begin  at   ten   o'clock,  A.    M.  on  the  ^}j\\^\°^;''to  1,^ 
day  appointed  for  such  election,  and  shall  close  at  sunset  the  same  opened  and 
day.  '=^°'^'^- 

17.  Every  sheriff  or   other  returning  officer,   within  ten   days  Sheriff  to  fur- 
after  every  election,  shall  at  the  request  of  any  person  elected  to  "{gg^^^^'^if Re- 
serve in  the   General   Assembly,  or  other  persons  in  his  behalf,  quested,  with  a 
cause  fair  copies  of  the  list  of  votes  and  the  number  of  ticket  bal- Qf^^^tes. 

lots  for  each  candidate  to  be  made  out  and  dehvered  to  the  person 

requesting  the  same,  or  to  his  order,   which  list  and  numbers  shall 

be  signed  by  the  returning   officer  ;  and  if  any  officer  shall  refuse  Penalty  on 

so  to  do,  or  shall  make  elections  in  any  other  manner   than  by  this  ing  to  do  their 

act  is  directed,  or  shall  neglect  or  refuse  to  make  returns  of  the  ^^^^Y '^T^S'^'^'^ 

elections,  by  him   to  be  made  or  taken,   the  officer  so  offending 

shall  forfeit  and  pay  five  hundred  dollars,  to  be  recovered  by  action 

of  debt,  in  any  court  of  record  having  cognizance  thereof,  one  half 

for  the  use  of  the  State,  the   other  half  to  the   use  of  the  person 

suing  for  the  same. 

IS.  The  sheriff,  or  other  returning  officers,  in  each  county  ai^cl  ^^^j^'^'*^^® i^"^°^ 
district  of  this  State,  shall,  on  the  payment  of  the  sum  of  two  dol-  furnished  with 
lars,  make  out  and   furnish  any  candidate,  not   elected,  with  a  fair  f,  ^t'^'*:™^"'^  "f 

,'  r    .u  11  1         •  c     ^  ^        ■  the  polls,  upon 

and  true  copy  oi   the  polls,  and  a  just  statement  ot  the   election,  paying  two  dol- 
within  twenty  days  after  such  election,  under  penalty  of  two  bun-  ^l^^^  ^^*^ 
dred  dollars  for  the  use  of  the  State.      Provided^  nevertheless,  that 
such  candidate  shall  make  application  for  such  statement  or  copies 

14.  1335,  c.  5,  s.  3.  '   , 

15.  1777,  c.  116,  s.  8. 

16.  1777,  c.  116,  s.  9,  amended. 

17.  1777,  c.  116,  s.  13. 

18.  1799,  c.  533. 

VOL.  I.  38 


298  GENERAL    ASSEMBLY.  [ChAP.  LII. 

to  the  sheriff  or  other  returning   officer,  within  ten  days  after  the 
election,  for  which  he  was  a  candidate. 
Whennosher-      ^^-   ^^  ^^  ^"7  ^ime  it  shall  happen,  that  there  shall  be  no  sheriff 
iff,  the  coroner  in  any  county  qualified   according  to  law,  the  coroner  or  coroners 
election!  ^       ^^  such  county  is  and  are  hereby  empowered  to  hold  elections  for 
When  there  is  such  county;  and  where  there  shall  be  neither  sheriff  nor  coroner 
nor* coroner"     ^^  take  the  poll  at  the   biennial  or   any  other  election,  it  shall  be 
three  justices    lawful  for  three  justices  of  the   peace  to  appoint  some   reputable 
ftrJhoFJkr  for^  freeholder  to  hold  the  election,  with  the  same  powers,  directions 
that  purpose,    and  restrictions,  as  sheriffs   by  law  are  invested  with  and  subject 
to,  and  such  election  so  made  shall  be  as  valid  as  if  taken  and  held 
by  the  sheriff  or  coroner. 
Penalty  on  20.   If  any  person  shall  hereafter  vote   at  any  election,  who  by 

qiialifiedl°for    l^w  shall  not  be  entitled  to  vote  at  such   election,  he   shall  forfeit 
voting  at  elec- and  pay  the   sum  of  four  dollars,  to  be  recovered  with  costs  by 
action  of  debt  before  any  jurisdiction  having   cognizance  thereof, 
one  half  to  the  use  of  the   county  wherein  such  election  shall  be 
held,  :and  the  other  half  to  him  or  them  who  shall  sue  for  the  same; 
and  where  any  suit  shall   be  brought  against  any  person  for  voting 
as  aforesaid,    without  having  a  right  to  such   vote,   the  onus  pro- 
bandi  shall  he  upon  the  defendant. 
Musters  not  to      21.  It  shall  not  be  lawful  to  call  or  direct  any  regimental,  bat- 
and°at\he  ^^   talion  or  company  muster,  or  to  assemble  armed  men,  on  the  day- 
place  of  any     of  any  election,   at  any  place  appointed  by  law  to  hold  elections 
eection.  ^^^  members  of  Congress,  or  members  of  the  General  Assembly 

within  this  State,  under  the  penalty  of  one  thousand  dollars,  to  be 
recovered  of  any  person  or  persons,  who  shall  call  such  muster,  or 
assemble  such  armed  men,  in  the  name  of  the  State,  and  be 
applied,  one  half  to  the  use  of  the  informer,  and  the  other  half  to 
the  use  of  the  State. 
Penalty  for  22.   If  any  person  shall  at  any  time  before  or  after  any  election, 

tOTtogive  hfs^^ither  directly  or  indirectly,  give  any  money,  gift,  gratuity  or  re- 
vote,  ward  to  any  elector  or  electors,  or   to  any  county  or  district,  in 
order  to  be  elected,  or  to  procure  any  other  person  to  be  elected 
as  a  member  of  the  General  Assembly,  every  person  so  offending 
shall  forfeit  and  pay  four  hundred  dollars,  to  be  recovered  by  ac- 
tion of  debt,  in  any  court  of  record  having  cognizance  thereof, 
with  costs,  and  shall  be  incapable  to  serve  as  a  member  during  the 
continuance  of  that  General  Assembly,  for  which  such  election 
shall  be  made  as  aforesaid. 
Penalty  for  23.   If  any  person  or  persons  shall  treat,  with  either  meat   or 
tions!"^  ^  ^  ^^  drink,  on  any  day  of  election  or  any  day  previous  thereto,  with  an 
intent  to  influence  the   election,    every  person   so   offending  shall 
forfeit  and  pay  the  sum  of  two  hundred  dollars,  the  one  half  for  the 
use  of  the  county  where  the  same  shall  be   recovered,  to  be  paid 
to  the  county  trustee,  the  other  half  to  the  use  of  the  person  who 

19.  1777,  c.  116,  s.  13.— 17S1,  c.  170,  s.  9. 

20.  1777,  c.  116,  s.  10.  "- 

21.  1795,  c.  431. 

22.  1777,  c.  116,  s.  11. 

23.  1801,  C.  580,  s.  3. 


Chap.  LIL]  general  assembly.  299 

shall  sue  for  the  same,  to  be  recovered  by  action  of  debt  in  any 
court  of  record  having  cognizance  thereof,  with  costs. 

24.  It   shall  be  the   duty   of  the  sheriff  in   each  and    every  Sheriff  to  ad- 
county,  annually  to  publish  the  two  preceding  sections  of  this  act,  precedinsVec" 
by  advertising  and  reading  the  same  at  the   court  house  door,  on  tions  against 
the  first  and  second  days  of  the  county  court,  which  shall  happen  treaU^^Ttdec- 
previous  to  the  annual  election,  and   also  on  the  different  days  of  tions. 

the  election,  under  the  penalty  of  forty  dollars  for  each  and  every 
neglect. 

25.  The  meeting  of  the   General  Assembly  shall  be  biennially  l^^"!^  °f  the 
on  the  third  Monday  in  November.  Gen.Assembly. 

26.  The  governor  may,  with  the  advice  of  the  council  of  state.  Governor  and 
call  a  meeting  of  the  General   Assembly,   if  the   same   shall  be  council  may 

1       ,        1  "  111  11    convene  the 

absolutely  necessary,  at  a  sooner  day  than  the  same  may  stand  ad-  General  As- 
journed  to  or  appointed  to  meet.  sembly  at  other 

27.  Every  person  elected  a  member  of  the  General  Assembly  meetings, 
shall,  before  taking  his  seat  therein,  take  the  oath  of  allegiance  ap-  Members  ofthe 
pointed  for  the  quahfication  of  members  ofthe  General  Assembly  ^^^^[y^^^^'^^j^g 
and  public  officers,  and  also  the  oath  to  support  the  constitution  of  oaths  to  sup- 
the  United  States  :  and  if  any   person  elected  a  member  of  tlie  ^fon^of Xf  ^' 
General  Assembly  shall,  by  himself  or   any  other  person,  directly  state  and  of 
or  indirectly,  give  or  cause  to  be   given  any  gift,  gratuity,  reward  g^lfYg"'^'' 

or  present  whatsoever,  or  give  or  cause  to  be  given  by  himself  or  Penalty  on 
any  other  person  any  treat  or  entertainment,  either  by  himself  or '^'^?^^'''^^  ^°'" 

1  r       1  •  r  1-1  11-  •       givmg  any  era- 

any  other  person  for  him,  of  meat  or  drnik,  at  any  public  meeting  tuity,  &c.  to  se- 
or  collection  of  the  people,  to  any  person  or  persons  whatsoever,  ^^^^  '•^^^'^  ^^^''^ 
for  his  or  their   vote  or  votes,    or  to   influence  him  or  them  in  his 
election,  every  person  violating  this  section  shall,  on  due  proof,  be 
expelled  from  his  seat  in  the  General  Assembly. 

28.  Every  person,  who  shall  be  elected  to  represent  any  coun^  Persons  elected 
ty  or  district  in  this   State  in  the  General  Assembly  thereof,  shall  f^*^^^  ^"^'^'^  ^J 

•  w*  7  the  meetinsf  ot 

meet  at  such  time  and  place  as  may  be  appointed  for  the  meeting  the  General 
of  the   General   Assembly,    by  adjournment  or  otherwise,  on  the  -'Assembly. 
first  day  appointed  for  that  purpose,  and  attend  to  the  pubhc  busi- 
ness as  occasion  may  require. 

29.  In  case  any  person,  who  shall  hereafter  be  elected  to  re-  Penalty  on  per- 
present  any  county  or  district  in  the  General  Assembly  of  this  f°-ifiig^to  peV-*"^ 
State,  shall  fail,  refuse,  neglect  or  delay  to  attend  to  the  duties  of  form  the  duties 
his  appointment  agreeably  to  the  directions  of  this  act,  every  such  ^e^t!"^  ^''^""^ " 
person  shall  forfeit  and  pay  for  non-appearing  as  aforesaid  the  sum 

of  ten  dollars,  and  the  sum  of  two  dollars  for  each  and  every  day  he 
may  be  absent  from  his  duty  during  the  session,  which  sum  or  sums 
of  money  shall  be  deducted  or  taken  from  his  pay  or  allowance  as  a 
member  if  the  same  shall  be  sufficient ;  and  should  the  fine  or  forfeit- 
ure exceed  the  pay  or  allowance  of  such  member  or  person  elected 
as  aforesaid,  then  and  in  that  case  such  excess  so  remaining  due  shall 

24.  1801,  c.  580,  s.  4. 

25.  1826,  c.  4,  s.  1. 
25.  1780,  c.  164. 

27.  1501,  c.  580,  s.  2. 

28.  1787,  c.  277,  s.  1. 

29.  1787,  c.  277,  s.  2. 


300  GENERAL    ASSEMBLY.  [ChAP.  LII. 

be  taken  out  and  deducted  from  anj  future  allowance  which  may- 
be made  to  such  person  as  a  member  by  the  General  Assembly  of 
this  State  :  Provided  nevertheless,  that  a  majority  of  the  members 
of  either  house  of  the  General  Assembly  may  and  shall  have  power 
to  remit  to  any  person,  having  incurred  the  same,  the  fines  and 
forfeitures  aforesaid,  or  any  part  thereof,  where  it  shall  appear  to 
their  satisfaction  on  oath  or  affirmation,  that  the  person  hath  been 
prevented  from  attending  his  duty  by  sickness,  unavoidable  hin- 
drance, or  other  sufficient  cause. 
Members  to  30.   The  members  of  the  General  Assembly  shall  have  freedom 

ors%ediand   °^  Speech  and  debate  in  the  General  Assembly,   and  not    be  lia- 
to  be  protected  ble  to  impeacliment  or  question,  in  any  court  or  place  out  of  the 
from  arrest,  &c.  Qq^qj-rI  Assembly,  for  words  therein  spoken,  and  the  members  are 
hereby  declared  protected  from  all  arrest  and  imprisonment,  or 
attachment  of  property,  during  the  time  of  their  going  to,  coming 
from  or  attending  the  General  Assembly,  agreeably  to  the  certifi- 
cate of  their  attendance,  except  for  felony,   treason  or  breach  of 
peace. 
Sheriffs  to  31.   The  sheriff"  of  every  county  and  district  shall  make  return 

make  return  to  ^q  ^]^g  General  Assembly,  at  their  first  annual  meeting,  of  the  per- 
sembly,of mem-  SOU  elected  in  his  county  or  district  to  represent  the  inhabitants  in 
frrai  their'^      either  house  of  the  legislature,   and  shall  therein  certify  whether 
counties  to       the  persons  so  returned  v;ere  chosen  by  their  own  consent,  and 
serve  iherem.    ^yhich  of  them  was  SO  chosen  ;  and  if  any  person  so  returned  shall 
fail  to  attend  at  any  session  of  the  General   Assembly  which  he 
ought  to  attend,  then  such  person  shall  forfeit  and  pay  the  sum  of 
fifty  dollars,  to  be  recovered  in  the  court  of  pleas  and  quarter  ses- 
sions of  the  county  for  which  such  person  was  elected,  at  the  suit 
of  the  governor  for  the  time  being,  on  the  certificate  of  such  fail- 
ure, issued  by  the  speaker  of  the  house,  in  which  such  dehnquency 
happened,  unless  sufficient  excuse  for  such  failure  be   offered   and 
proved  on  oath  by  such  delinquent  member  at  the  next  succeeding 
Assembly. 
How  any  per-        32.   It  shall  not  be  lawful  for  any  person  to  vacate  the   seat  of 
the  seat  of^a^  any  member  of  the  General  Assembly,  who  has  taken  his  seat  in 
member  shall    consequence  of  the  return  of  the  sheriff  or  sheriffs  of  his  county  or 
procee  .  district,    Certifying    that  he   is    duly  elected,    unless    the   person 

or  persons  who  may  intend  to  dispute  such  election  shall  give 
the  member  or  members,  whose  election  he  or  they  intend  to  dis- 
pute, thirty  days  notice  previous  to  the  meeting  of  the  General 
Assembly  of  such  his  intention,  with  the  ground  on  which  the 
same  will  be  disputed  ;  and  the  same  notice  of  time  and  place,  now 
required  in  taking  depositions  at  law,  shall  also  be  required  and 
proved  on  such  investigation,  and  all  affidavits  taken  without  due 
notice  as  aforesaid  shall  be  deemed  improper  evidence  and  not 
suffered  to  be  read  in  such  investigation, 
penalty  on  33.   If  any  person,  being  legally  summoned  by  any  lawful  offi- 

foiWto\ttend  "^^r  ^7  ^  subpoena  issued  by  a  justice  of  the  peace,   or   any  other 

and  give  evi- 
dence in  con-          30  1737^  c.  277,  s.  3. 
tested  elections.      31,  1737^  e.  277,  s-  4. 

32.  1796,  C.  466,  s.  l- 

33.  1800,  c,  S57,  3.  1. 


Chap.  LIL]  general  assembly.  301 

person  authorized  by  law  to  take  depositions,  to  appear  before 
them  or  either  of  them,  to  give  testimony  in  behalf  of  either  of  the 
parties  disputing  any  election  for  members  of  the  General  Assem- 
bly, he  or  they  failing  to  attend  agreeably  to  the  said  subpoena,  and 
give  testimony  as  aforesaid,  shall  forfeit  and  pay  the  party  grieved 
the  sum  of  forty  dollars,  to  be  recovered  by  action  of  debt,  before 
any  jurisdiction  having  cognizance  thereof  :  Provided,  nothing  here- 
in contained  shall  be  construed  to  extend  to  the  compelling  any 
such  witnesses  to  answer  any  question  tending,  directly  or  mdi- 
rectly,  to  discover  the  person  for  whom  he  voted,  or  to  discover 
his  disqualifications  as  an  elector.  _ 

34.  Any  person,  being  so  summoned  and  appearing  and  givmg  pay  of  witnes- 
testimony  as  aforesaid,  shall  be  entitled  to  receive  from  the  person,  ?^^| f°7^^^^"d- 
at  whose  instance  he  was  summoned,  the  sum  of  ten  cents  for  every  cases. 

mile  travelling  to  and  from  the  said  place  and  his  ferriages,  to  be 
recovered  before  any  justice  of  the  peace  in  said  county. 

35.  Any  person  or  persons,  who  may  desire  the  passage  of  any  Persons  desi- 
private  law,  shall  give  notice  of  his  intention  to  make  such  appli- [°JVeVas°™ge 
cation,  by  advertisement  in  some  newsjjaper  of  this   State,  which  oA  private  ° 
circulates  in  the  county  where  such  applicant  or  some  one  of  them  Jf^^-J^7  ^^ 
resides,  or  in  which  such  private  law  will  operate,  or  by  advertise- 
ment at  the  door  of  the  court  house  and  three  other  public  places 

in  such  county,  for  at  least  thirty  days  before  such  application  ;  and 
when  any  private  bill  shall  be  presented,  a  copy  of  such  advertise- 
ment, with  due  proof  of  its  having  been  so  published,  shall  be  pro- 
duced, before  the  same  shall  be  read  a  second  time. 

36.  All  acts  of  the  General  Assembly  of  this  State  shall  be  in  Acts  of  the 
force,  only  from  and  after  thirty  days  after  the  rise  of  the  session  Gejral^As-^^^ 
of  the  General  Assembly,  in  which  such  acts  shall  have  passed,  and  be  in  iorce. 
not  before,  unless,  in  any  act  or  acts,  the  commencement  of  the 
operation  of  such  act  or  acts  shall  be  expressly  otherwise  directed. 

37     The   clerks  of  the  senate   and  house  of  commons  of  this  tj^^  jo^^nals  of 
State"  shall,  as  soon  as  may  be  convenient,  after  the  close  of  each  Jhe^two  houses 
session  of  the  General  Assembly,  deposit  in  the  office  ot  the  sec- j^  the  office  of 
retary  of  state  the  journals  of  the  legislature,  and  the  secretary  ofthe^se«-mr|.^^^^ 
state  is  authorized  and  directed  to  make  and  certify  copies  ot  any  certify  copies 
part  or  entry  of  the  journals  of  the  legislature  of  this  State,  whether  Jher^^f/^^" 
heretofore  deposited  in  his  office    or    deposited   there   hereafter, 
and   the   secretary  may  take    and  receive   for  the  copy  of  each 
entry  so  made  and  certified  the  same  fee  as  for  the   copy  of  a 
grant. 

34.  1800,  c.  557,  s.  2. 

35.  1835,  c.  15.— 1796,  c.  466,  s.  2. 

36.  1799,  c  527. 

37.  1819,  c.  1020. 


302 


GOVERNOR  AND  COUNCIL.         [ChAP.  LIII. 


CHAPTER  53. 


GOTERNOR  AND  COUNCIL. 


AN  ACT  CONCERNING  THE  GOVERNOR  AND  COUNCIL  OF  STATE. 


Section 

1.  Election  of  governor,  when  to  be  held 

and  how  conducted. 

2.  Governor  to  reside  at  Raleigh. 

3.  A  house  to  he  provided  for  him. 

4.  Governor  shall  appoint  a  private  sec- 

retary, who   shall  enter  letters  in  a 
letter  book. 

5.  Letter  book  to  be  kept  in  the  execu- 

tive ofBce. 

6.  Meetings  of  the  council  of  state  shall 

be  in  Raleigh. 

7.  Governor  and  council  may  convene 

the   General   Assembly,  if    neces- 
sary. 

8.  Governor  to  procure  a  seal  for  the 

State— Also  a  seal  for  each  court  of 
record. 

9.  He  may  procure  new  seals  when  ne- 

cessary. 

10.  How  the  seals  are  to  be  prepared. 

11.  Expense  of  seals,  how   paid- Seals 


Section 

to  be  delivered  to  the  proper  officers, 
who  are  to  receipt  for  the  same. 

When  a  seal  to  a  grant,  &c.  is  lost, 
the  governor  and  council  may  order 
it  to  be  resealed. 

Compensation  of  sheriffs  for  making 
returns  of  the  governor's  election. 

How  such  compensation  to  be  ascer- 
tained and  paid. 

Persons  intending  to  contest  the  elec- 
tion of  governor,  to  give  notice,  &c. 
—Proceedings  thereon. 

Sheriffs  to  transmit  a  duplicate  re- 
turn of  the  vote,  &c. 

Penalty  on  persons  for  voting  who 
are  not  qualified. 

Returns,  by  whom  and  when  to  be 
opened — How  the  election  to  be  de- 
termined. 

Depositions  may  be  taken  in  such 
contested  elections. 


12. 


13. 


14. 


Ic 


16. 


17. 


18. 


19. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JS'orth 
Carolina.)  and  it   is  hereby  enacted  by  the    authority  of  the  same., 
Election  of       That  the  sheriffs  of  the  several  counties  of  this   State  shall  open 
fo  be™  eldand"  polls,  at  the  several  election  precincts  of  their  respective  counties, 
how  conducted,  for  the  election  of  a  Governor  of  the  State  of  North  Carolina,  on 
the  same  days  in  the   months  of  July  and  August,   one  thousand 
eight  hundred  and  thirtyeight,  that  elections  are  now  held  for  mem- 
bers of  the  General  Assembly,   and   biennially  thereafter  on   the 
same  days,  and  under  the  same  rules,   regulations  and  restrictions 
that  elections  are  directed  to  be  held  for  members  of  the  General 
Assembly  of  the  State,  and  that  the  said  sheriffs  shall  make  their 
returns    of  the    said    elections,  sealed  up,    to  the    secretary    of 
state,  to  be  by  him  delivered  to  the  speaker  of  the  senate  on  or 
*        before  the  second  -week  of  the  session  of  the  General  Assembly,  to 
be  held  next  thereafter. 
Governor  to  re-      2.    The  governor  for  the  time  being,  shall  reside  permanently  at 
Rakfo-h.  the  city  of  Raleigh,  during  his  continuance  in  office. 

A  house  to  be       3.   A  convenient  and  commodious  dwelling  house,  together  with 
provided  for     ^y^ch  out  houses  as  shall  be   necessary,   shall  be  provided  for  the 


1.  1835,  c.  1.  s.  4. 

2.  1802,  c.  625,  s.  1. 

3.  1813,  C   854,  s.  1. 


Chap.  LIIL]      governor  and  council.  303 

accommodation  of  the  chief  magistrate  of  this  State  for  the  time 
being. 

4.  The  governor  for  the  time  being  shall  appoint  a  private  sec-  Governor 
retary,  who  shall  enter,  in  books  for  that  purpose,  all  such  letters  privlie^seT^  * 
written  by  and  to  the  governor   as   are  official  and  important,  and  retary ,who 
such  other  letters  as  the  governor  shall  think  necessary.  l^^^  in  a^letteV 

5.  The  letter  book  of  the  governor  shall  be  deposited   in  the  book. 
office  of  the   executive,  by  the  private  secretary  of  the  governor,  Letter  book  to 
and  there  carefully  preserved,  and  it  shall  be  the  special  duty  of  the  executive"of-^ 
governor  for  the  time  being,  to  have  the  said  letter  books  of  him-  fi^e. 

self  or  any  of  his  predecessors  in  office  produced  before  the  Gen- 
eral Assembly,  whenever  thereto  requested. 

6.  Whenever  the  governor  shall  conceive  it  necessary  to  con- Meetings  of 
vene  the   council   of  state,   such   meeting  shall  be  in  the  city  of  g^®J°g^^ll  °^ 
Raleigh,  unless  an  invasion,  insurrection  or  contagious  disease  shall  be  in  Raleigh. 
render  it  advisable  to  call  them  elsewhere. 

7.  It  shall  be  lawful  for  the   governor,  with  the   advice  of  the  Governor  and 
council  of  state,  to  call  a  meeting  of  the  General  Assembly,  if  the  c°™"^e'^he 
same  shall  be  absolutely  necessary,   at  a  sooner  day  than  the  same  General  As- 
may  stand  adjourned  to,  or  appointed  to  meet.  sembly,  if ne- 

•'  J  '  r  sr  ^  _  cessary. 

8.  The  governor  shall  be  authorized  and    required   to  procure  Q^^.gj.jjQj,  ^^ 
for  the  State  a   seal,  which   shall  be  called  the  Great  Seal  of  the  procure  a  seal 
State  of  North  Carolina,  to  be  used  for  attesting  and  authenticating  ^[^^'^^  ^g^^'^j-^jj. 
grants,  proclamations,  commissions  and   other  public  acts,  in  such  each  court  of 
manner  as  may  be  directed  by  law  and  the  usage  established  in  the  '^®°°''°- 
public  offices  ;  also  a  seal  for  each  of  the  courts  of  record,  estab- 
lished or  to  be  estabUshed  in  this  State,  for  the  purpose  of  authen- 
ticating the  papers  and  records  of  such  court  when  required. 

9.  Whenever  the  great  seal  of  the  State,  or  any  of  the  seals  ofHemaypro- 
the  courts  of  record,  shall  be   lost  or   so  worn  or  defaced  as  to  "^"J®  "^'^^  ^^'^^^ 

1        ■  r     r  ^  i     ii  •  i  i      When  neces- 

render  it  unnt  tor  use,  the  governor  shall  provide  a  new  one  to  be  sary. 
used  for  the  same  purpose  as  directed  in  the  last  section. 

10.  The  seals  provided  under  the  direction  of  this  act  shall  be  How  the  seals 
prepared  with    one    side  only,   and   calculated  to    make  the  im-  ^""^ '°  ^^  P"^^' 
pression  on  the  face  of  such  grant,   commission,   record  or  other 

public  act  ;  and  in  cases  of  new  seals  provided,  instead  of  former 
ones  lost,  worn  or  defaced,  such  former  seals  shall  not  be  used  in 
any  case  after  the  new  ones  are  procured. 

11.  The   governor  is   authorized  to  issue  his  warrant  on   the  Expense  of 
treasurer  for  such  sum  as  may  be  necessary  to  discharge  the   ex- se^s,  how  paid 
pense  of  procuring  the  seals  aforesaid  ;  and  he  shall  cause  the  said  delivered  to 
seals  to  be  dehvered  to  the  proper  officers,    who    shall    give    a 'h^  P^'opj'i"  °f-. 
receipt   for  the    same  and  be   accountable  for  the  safe  keeping  to  receipt  for 

thereof.  'he  same. 

4.  1784,  c.  224. 

5.  1806,  c.  702,  s.  2. 
G.  1794,  c.  410. 

7.  1780,  c.  164. 

8.  1791,  c.  344,  s.  1. 

9.  1S34,  c  24. 

10.  1791,  c  344,  s.  2. 

11.  1791,  c.  314,  s.  3. 


304 


When  a  seal 
to  a  grant,  &c 
is  lost,  the  gov 
ernor  and 
council  may- 
order  it  to  be 
resealed. 


Compensation 
of  sheriffs  for 
making  re- 
turns of  the 
governor's 
election. 


How  such 
compensation 
to  be  ascer- 
tained and 
paid. 

Person  intend- 
ing to  contest 
the  election  of 
governor,  to 
give  notice, 

&.C. 


Proceedings 
thereon. 


Sheriffs  to 
transmit  a  du- 
plicate return 
of  the  vote, 
&c. 


GOVERNOR  AND  COUNCIL.         [ChaP.  LIII. 

12.  In  all  cases  where  any  person  or  persons  may  find  it  neces- 
.sary  to  have  the  seal  of  the  State  put  again  to  any  grant  or  other 

public  paper,  he,  she  or  they  may  prefer  his,  her  or  their  petition 
to  the  governor  and  council,  who  shall,  if  they  shall  deem  the 
same  proper,  after  examining  such  grant  or  other  paper,  order  and 
direct  the  secretary  to  put  the  seal  of  the  State  thereto,  for  which 
he  shall  be  allowed  the  usual  fees. 

13.  Each  one  of  the  sheriffs  of  the  several  counties  in  this  State 
shall  hereafter  be  entitled  to  receive  the  sum  of  two  dollars,  for 
each  and  every  day  he  may  be  necessarily  engaged  in  making  the 
returns  of  the  elections  for  governor  in  his  or  their  respective 
counties,  according  to  the  provisions  of  the  first  section  of  this  act, 
and  in  travelling  to  and  from  the  city  of  Raleigh  by  the  most  usual 
road  from  and  to  his  residence. 

14.  The  said  compensation  to  sheriffs  shall  be  ascertained  and 
certified  by  the  secretary  of  state  ;  and  the  same  shall  be  passed 
as  pubhc  accounts  and  paid  by  the  treasurer. 

15.  When  any  person  or  persons  shall  contest  the  election  of 
any  person,  who  may  be  elected  governor,  or  may  have  received 
the  largest  number  of  votes,  agreeably  to  the  returns  of  the  respec- 
tive sheriffs  of  the  State,  such  person  or  persons  shall  in  writing 
give  notice  to  him,  whose  election  he  or  they  intend  to  contest, 
of  such  his  or  their  intention,  as  well  as  the  specific  grounds  upon 
which  he  or  they  may  intend  to  contest  his  election  ;  setting  forth 
the  county  or  counties,  in  which  he  or  they  allege  that  spurious 
or  illegal  votes  were  given,  or  any  other  invasion  of  the  law  or 
constitution,  having  relation  to  the  case,  shall  have  taken  place,  at 
least  thirty  days  before  the  first  day  of  December  in  the  year  in 
which  such  election  is  held,  and  also  in  one  or  more  newspapers 
published  in  Raleigh  ;  and  satisfactory  proof  that  such  notice  has 
been  given  shall  be  required  before  the  General  Assembly  pro- 
ceed to  inquire  into  the  truth  of  such  allegations  :  Provided  hoio- 
ever,  that  if  the  person  whose  election  is  contested  is  out  of  the 
State,  or  not  to  be  found  at  the  time,  thirty  days'  notice,  in  one 
or  more  of  the  newspapers  published  in  Raleigh,  shall  be  deem- 
ed sufficient. 

16.  The  sheriffs  of  the  several  counties  shall,  within  thirty 
days  after  the  election  for  governor,  in  addition  to  the  returns 
now  required  by  the  constitution,  make  out  and  transmit  to  the 
secretary  of  state,  a  duphcate  of  the  vote  for  governor  in  his 
county,  which  the  secretary  shall  keep  in  his  office  for  the  inspec- 
tion of  any  person  wishing  to  examine  the  same  ;  and  every  sher- 
iff failing  or  refusing  to  make  the  returns  required  by  the  consti- 
tution, or  to  transmit  the  duplicate  as  herein  required,  shall  forfeit 
and  pay  the  sum  of  one  hundred  dollars,  to  be  recovered  in  any 
court  having  jurisdiction  thereof,  in  the  name  of  mid  to  the  use  of 
the  State  ;  and  it  is  hereby  made  the  duty  of  the  secretary  to  sue 

12.  1791,  e.  344,  s.  4. 

13.  1836,  c.  35,  s.  1. 

14.  1336,  c.  35,  s.  2. 

15.  1836,  c.  21,  s.  1. 

16.  1836,  c.  21,  s.  2. 


Chap,  LIV.]        guardian  and  ward.  305 

for  the  same  ;  and  such  sheriff  shall  moreover  be  held  and  deemed 
guilty  of  a  misdemeanor,  and,  upon  conviction  thereof  in  any  of 
the  superior  courts  of  law  in  this  State,  shall  be  fined  at  the  dis- 
cretion of  the  court  not  exceeding  one  thousand  dollars. 

17.  Any  person  who  shall  vote  for  governor,  other  than  those  Penalty  on 
specified  by  the  constitution,  shall  in  all  cases  be  liable  to  the  same  votfngf who 
fines  and  penalties  as  persons  are  now  subject  to,  for  voting  illegally  ^^J^°^  l*^^!- 
for  members  of  the  house  of  commons. 

18.  In  future,  the  speaker  of  the  senate  shall  open,  in  the  pre- Returns,  by 
sence  of  a  majority  of  the  two  houses,  the  returns  for  governor,  when^to  be 
during  the  first  week  in  December  in  which  the  legislature  shall  be  opened. 

in  session  ;  and  upon  a  resolution  or  the  suggestion  of  any  mem- 
ber of  either  house,  such  house  shall  proceed  to  examine,  whether 
the  individual  returned  as  having  the  largest  number  is  duly  elect- 
ed. Each  house  shall  separately  determine  all  such  cases  ;  and  How  the  elec- 
unless  a  majority  of  each  house  shall  declare  the  person  returned,  termined^  ^^' 
as  having  the  largest  number  of  votes,  is  not  duly  elected,  then 
the  speaker  of  the  senate,  in  presence  of  both  houses,  shall  pro- 
nounce such  person  duly  elected. 

19.  It  may  be  lawful  for  any  person  to  take   depositions   to  be  Depositions 
read  in  such  cases,  before  two  magistrates,  which  depositions  shall -^Yuch  con-" 
have  the  certificate  and   seal  of  the  clerk  of  the  county  court,  in  tested  elec- 
which  such  depositions  are  taken,  setting  forth  that  such  persons  ^^'*"^' 

are  acting  justices  of  the  peace  for  the  county  :  Provided  however^ 
that  no  such  depositions  shall  be  deemed  evidence,  unless  ten 
days  notice  shall  have  been  given  to  the  person,  whose  election  is 
contested  ;  which  notice  shall  be  given  in  writing,  to  be  proved 
by  the  person  dehvering  it,  who  shall  depose  before  a  justice  of 
the  peace  that  such  notice  was  delivered  by  him,  setting  forth  the 
date  of  its  delivery.  If,  however,  the  person  whose  election  is 
contested  is  out  of  the  State  or  not  to  be  found,  fifteen  days  notice 
given  in  a  newspaper  published  in  Raleigh  shall  be  sufficient. 

17.  1836,  c.  21,  s.  3. 

18.  1836,  c.  21,  s.  4. 

19.  1836,  c.  21,  s.  5. 


CHAPTER  54. 
GUARDIAN   AND   VTARD. 


an  act  concerning  the  appointment  of  guardians  and  the 
management  of  orphans  and  their  estates. 


Section 

1 .  A  father  may,  by  deed  or  will,  appoint 

a  guardian  for  his  children. 

2.  The  superior  and  county  courts  to 

VOL.   I.  39 


Section 

have  cognizance  of  all  matters  rela- 
ting to  orphans  and  their  estates — 
to  appoint  guardians  and  take  bonds 


306 


GUARDIAN    AND    WARD.  [ChAP.  LIV. 


Section 

— Justices  liable  for  taking  insuffi- 
cient security— Proviso. 

3.  Guardian  bonds,  how  payable,  and 

remedy  upon  them. 

4.  Clerks  to  enter  upon  their  dockets 

the  names  of  the  justices  on  the 
bench  when  guardian  bonds  are 
taken — Proviso  for  a  justice  present, 
but  not  concurring. 
6.  Guardians  may  be  appointed  to  take 
charge  of  the  property  of  children, 
whose  fathers  are  alive. 

6.  One  bond  only  to  be  taken  from  the 

guardian  of  orphans,  who  have  pro- 
perty in  common. 

7.  Guardian  bonds  to  be  renewed  once 

in  every  three  years— Summons  to 
guardians  failing  to  renew. 

8.  Duty  of  the  clerks  of  the  superior 

courts  as  to  guardians  appointed  by 
such  courts,  and  failing  to  settle 
their  accounts  and  renew  their 
bonds — Clerks  of  the  county  courts 


to  issue  notices  to  such  guardians. 


9. 


Duty  of  guardians  in  taking  posses- 
sion of  the  estate  of  their  wards. 

10.  Guardians  to  render  an  account  of 

the  estate  of  their  wards  upon  oath. 

1 1 .  Orphan's  court  to  be  held — All  guar- 

dians to  render  accounts  annually — 
Clerk  to  issue  ex  officio  summons 
to  guardians  failing  to  render  their 
accounts. 

12.  Clerk's  fee  for  issuing  summons  to 

guardian,  and  how  collected. 

13.  Guardians,  by  order  of  court,  to  sell 

the  perishable  estate  of  their  wards 
— To  lend  out  the  money  of  their 
wards  upon  bond  or  note — To  ac- 
count for  interest  annually — Bonds 
to  bear  compound  interest — may  be 
assigned  to  wards  upon  their  com- 
ing of  age. 

14.  In  what   cases   slaves  and   stock  to 


Section 

be  kept  on  ward's  land — Proviso, 
where  stock  becomes  loo  numerous. 

15.  In  what    cases  ward's    land     and 

slaves  to  be  rented  and  hired  out — 
How  land  to  be  rented. 

16.  Sales,  &c.  of  ward's  estate,  how  to 

be  made. 

17.  Penalty  upon  a  guardian  for  suiTering 

his  ward's  land  to  lapse  or  become 
forfeited  by  the  non-payment  of 
taxes  or  other  dues. 

18.  Power  and  duty  of  the  courts  where 

guardians  mismanage  their  wards' 
estates,  or  when  they  and  their 
sureties  are  likely  to  become  insol- 
vent. 

19.  Grand  jury  to  present   all  orphans 

without  guardians,  and  all  abuses 
of  guardians. 

20.  Remedy   for   sureties   of   guardians 

when  such  sureties  are  likely  to 
suffer. 

21.  Remedy  against  guardians  by  peti- 

tion. 

22.  Guardians  to  be   allowed  disburse- 

ments and  expenses,  and  also  com- 
missions. 


23. 


24. 


26. 


27. 


Guardians  of  orphans  removing  to  or 
residing  in  other  states,  how  to  ob- 
tain the  personal  estate  of  their 
wards  in  this  State  out  of  the  hands 
of  their  guardians  in  this  State. 

How  to  proceed  when  there  is  no 
guardian  in  this  State. 

Power  of  the  court  of  equity,  in  rela- 
tion to  orphans  and  their  estates, 
not  to  be  abridged. 

A  court  of  equity  may  direct  a  sale 
of  the  real  or  personal  estate  of  in- 
fants, if  such  sale  would  promote 
the  interests  of  the  infants. 

Manner  in  which  sale  shall  be  made 
— How  the  proceeds  to  be  applied 
and  secured. 


1 .   Be  it  enacted  by  the  General  Assembly  of  the  State  ofJ^orth 

Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

bydeed'"orwili,  That  where  any  person  hath  or  shall  have   any  child  or  children 

appoint  a  guar- under  the  age  of  twentyone  years,   and  not  married,   it  shall  be 

cMdren.  ^      lawful  for  the  father  of  such  child  or  children,  whether  born  at  the 

time  of  his  death,  or  in  ventre  sa  mere,  or  whether  such  father  be 

within  the  age  of  twentyone  years  or  of  full  age,  by  deed  executed 

in  his  lifetime,  or  by  his  last  will  and  testament  in  writing,  in  such 

manner  and  from  time  to  time  as  he  shall  think  fit,  to  dispose  of 

the  custody  and  tuition  of  such  child   or  children  for  and  during 


1.   1762,  c.  69,  S.2. 


Chap.  LIV.]        guardian  and  ward.  307 

such  time  as  he,  she,  or  they  shall  remain  under  the  age  of  twen- 
tyone  years,  or  for  any  less  time,  to  any  person  or  persons,  and 
every  such  disposition  shall  he  good  and  effectual  against  all  and 
every  person  and  persons,  claiming  the  custody  and  tuition  of  such 
child  or  children  as  guardian  in  socage,  or  otherwise,  and  the  per- 
son or  persons  to  whom  such  custody  or  tuition  shall  be  so  dis- 
posed or  devised,  shall  have  the  same  powers,  rights  and  privileges, 
and  be  subject  to  the  same  liabihties,  rules  and  regulations  as  other 
guardians. 

2.  The  several  superior  courts  of  law,  and  the  courts  of  pleas  The  superior 
and   quarter  sessions,  within  their  respective   counties,  shall  have '^"^ ''°"'^,ty 

r  1-1  ]  1        •        c  •  •  1  •  ^court,  to  nave 

lull  power  and  authority  Irom  time  to  lime  to   take  cognizance  ot  cognizance  of 
all   matters   concerning  orphans  and  their  estates,  and  to  appoint  all  matters  re- 
guardians   where  none  have  been  appointed  by  the  father,  as  pre-  phans  and 
scribed  in  the  preceding  section,  and  where  to  them  it  shall  appear  ^'^"'"  ^^f'^^^S"" 
necessary,    and  shall  take  good   security  of  all  the  guardians   by  guardians  and 
them  to  be  appointed  for  the  estate  of  the  orphans  by  them  com-  ^^^^  bonds. 
milled  :   And  if  any  court  shall  commit  an  orphan's  estate  to  the 
charge  or  guardianship  of  any  person  or   persons,   without  taking 
good  and  sufficient  secui-ity  for  the   same,   the   justice  or  iuslices  Justices  liable 

o         _     _  ,  •'  .  *'  ^  lor  taking  in- 

appointing  such  guardian  shall  be  liable   for  all  loss  and   damages  sufficient  se- 
sustained  by  the  orphan  for  the  want  of  such  security  being  taken,  cunty. 
to  be  recovered  by  action  at  the  common  law,  in  any  court  of  re- 
cord in  which  the  same  is  cognizable,  at  the  suit  of  the  party  griev- 
ed.    Provided  always,  that  where  the  securities  were  good  at  the^'^"^^®"' 
time  of  their  being  taken  or  accepted,   but  afterwards   became  in- 
solvent, in  such  case  the  justice  or  justices  shall  not  be  hable. 

3.  All  bonds  taken  from  guardians  shall  be  taken  and  made  pay- Guardian  bonds 
able  to  the  Stale  of  North  Carohna,  which  bonds  the  court  shall  ^°^  payable 

,  ,  1     1       1  1     r  1  1  11  1  and  the  remedy 

cause  to  be  acknowledged  beiore  them  and  recorded  ;  and  any  per- upon  them, 
son  injured  may,  at  his  and  their  proper  costs  and  charges,  com- 
mence and  prosecute  a  suit  against  such  guardian  and  his  securities^ 
his  or  their  heirs,  executors  or  administrators,  and  may  recover 
all  damages  and  costs  which  he,  she  or  they  have  sustained  by 
reason  of  the  breach  of  the  condition  thereof :  and  if  judgment 
shall  be  rendered  in  favor  of  such  guardian  or  his  securities,  the 
person  at  whose  instance  such  suit  shall  be  commenced  or  prose- 
cuted shall  pay  costs. 

4.  It  shall  be  the  duty  of  the  clerks  of  the  county  courts,  and  they  Clerks  to  enter 
are  hereby  required  to  make  a  record  of,  and  enter  at  large  on  their  docket  the 
dockets,  the  names  of  the  justices  of  the  court  who  shall  be  pre-  names  of  the 
sent  at  the  granting  of  any  guardianship,  and  approving  of  the  securi-  bencrwhen  ^ 
ties  lo  the  guardian  bond  ;  and  it  shall  also  be  the  duly  of  the  clerk  guardian  bonds 
to  certify  upon  the  said  bond  the  names  of  the  justices  present  in  "®  ^^  ®^" 
court  and  granting  such  guardianship  ;  and  no  justice  of  the  peace, 

to  whom  any  guardianship  shall   be  committed,  shall  be  permitted 

to  vote  or  sit  on  the  bench  at  the  time  of  the  said  appointment  :  proviso  for  a 

Provided  always,  that  any  justice  of  the  peace,  present  and  not  con-  justice  present 

2.  1762,  c.  69,  s.  Sand  6. 

3.  1762,  c  69,  s.  7.— 1825,  c.  1235,  s.  2.— 1833,  c.  17. 

4.  1825,  c.  1285,  S.  3. 


308  GUARDIAN   AND   WARD.  [ChAP.  LIV. 

but  not  concur-  curring  in  the  grant  of  such  guardianship,  or  in  the  acceptance  of 
"^§''  the  securities  offered  by  the  guardian,  may  require,  and  on  his  re- 

quest the  clerk  shall  record  on  the  minutes  and  certify  on  the  bond 
that  such  justice  does  not  concur  in  such  appointment,  or  in  the 
acceptance  of  the  sureties  offered,  and  such   certificate  and  entry 
shall  exempt  such  justice  from  liabiUty  on  account  of  such  bond. 
Guardians  may      5.   The  superior  and  county  courts  shall  and  may  appoint  a  fit 
take^charge  of°  snd  proper  person  to  take  the  care  anB  management  of  the  estates, 
the  property  of  real  and  personal,  rights  and  credits,  of  any  person  under  the  age 
fathers\re  °^^  of  twentyone  years,  who  shall  be  seized  or  possessed  of  any  estate 
alive.  real  or  personal,  or  entitled  to  any  such  estate,  although  the  father 

of  such  minor  may  be  living.     And  the  person  so  appointed  shall 
enter  into  bond  with  surety,  as  required  (by  the  preceding  sections 
of  this  act)  of  guardians  of  orphans,  and  shall  have  the  same  au- 
thority as  guardians,  and  be  governed  in  all  respects  by  the  laws 
relative   to  guardians  and  orphans,  so  far  as  respects  the  property 
and  rights  of  orphans,  but  shall  not  have  any  care  of  or  authority 
over  the  person  of  such  minor  by  virtue  of  such  appointment. 
One  bond  only       Q.  When  the  Same  person  is  appointed  guardian  to  two  or  more 
from  the  guar-  minors,  possessed  of  an  estate  in  common,  it  shall  be  lawful  for 
dian  of  orphans  thg  court  of  pleas  and  quarter  sessions  by  which  he  was  appointed, 
^ty  incom-      should  the  court  deem  it  proper  to  accept  of  said  guardian,  to  take 
"ion-  one  bond  only  for  the  execution  of  his  trust,  upon  which  bond 

each  of  the  minors  or  any  other  person  entitled  may  commence 
and  prosecute  the  same   remedies  as  though  several  bonds  had 
been  given  in  trust  for  each  of  the  said  children.     And  the   clerk 
taking  the  said  bond  shall  not  demand  or  receive  more  than  a  sin- 
gle fee  for  the  same. 
Guardian  bonds      7.   All  guardians  of  every  description,   from  whom  bonds  are 
once  in  evInT   required,  shall  renew  their  respective  bonds  in  the  several  county 
three  years,      courts  every  three  years  during  the  continuance  of  their  respective 
summons^tr^  guardianship  :   and  it  shall  be  the  duty  of  the  clerks  of  the  several 
guardians         county  courts  to  issue  an  ex  officio  summons  against  each  and  every 
jww    ^°  ^^'     guardian,  in  whatsoever  county  he  may  reside,   who  shall  fail  to 
comply  with  the  requisitions  of  this  section  ;  and  upon  a  return 
made  of  the  service  of  such  summons  that  the  guardian  is  not  to  be 
found,  an  alias  shall  issue,  and  if  upon  the  return   of  such  alias 
summons  the   guardian   is  not  to  be  found,  it  shall  be  the  duty  of 
the  court  to  remove  such  guardian  from  office  and  to  appoint  a 
successor  to  him  or  them  so  removed,  and  to  take  bond  with  good 
and  sufficient  security,  to  be  approved  of  by  the  said  court,  from 
the  succeeding  guardian,  unless  the  former  guardian  shall,   at  the 
court  to  which  such  summons  shall  be  returned,  appear  and  com- 
ply with  the  requisitions  of  this  section.     Provided  always,  that 
no  prosecuting  officer  shall  be  entitled  to  charge  a  fee  in  any  such 
case. 
Duty  of  the  8.  It  shall  be  the  duty  of  the  clerks  of  the   superior  courts  of 

clerks  of  the    j^w  to  render  to  the  clerks  of  the  county  courts,  annually,  at  the 

superior  courts  •'  '  •'  ^ 

6.  1806,  c.  707,  s.  1. 

6.  1822,  c.  1161,  s.  1  and  2, 

7.  1820,  c.  1039,  s.  1  and  2.— 1824,  c.  1546. 

8.  1825,  c.  12SS,  s.  1  and  2. 


Chap.  LIV.]        guardian  and  ward.  309 

first  court  which  shall  be  holden  in  each  and  every  county  after  the  as  to  guardians 
first  day  of  January,  a  list  of  the  names,  setting  forth  therein  the  3^^^™^^,^^^''^ 
times  of  appointment,  of  all  persons  who  shall  have  been  appointed  and  failing  to 
guardians  by  the  courts  of  which  they  are  respectively  clerks,  and  coums^and  re- 
who  shall  not  have  made  a  final  settlement  with  his  or  her  ward  ;  new  their 
and  it  shall  be  the  duty  of  the  clerks  of  the  county  courts  to  issue  °"  ^" 
an  ex  officio  summons  to  all  guardians,  appointed   by  any  of  the  county  court^to 
superior  courts,  who  shall  fail  to  appeal'  and  settle  their  respective  issue  notices 
accounts  and  renew  their  bonds,  under  such  rules,  regulations  and  j-^t^J]  ^^^'^' 
restrictions  as  are  prescribed  above  for  issuing  summonses  against 
delinquent  guardians  in  the  county  courts. 

9.  Every  person,  to  whom  the  guardianship  of  any  child  has  Duty  of  guar- 
been  or  shall  be  committed  in  either  of  the  modes  above  mentioned,  po^sessioiTrf  ^ 
shall  take  into  his  possession,  for  the  use  of  such  child  or  children,  the  estate  of 
the  profits  of  all  lands,  tenements  and  hereditaments,  and  also  all  ^      wards, 
the  slaves,  goods  and  chattels  and  other  personal   estate  of  such 

child  or  children,  and  may  bring  such  actions  in  relation  thereunto 
as  by  law  a  guardian  in  common  socage  might  do. 

10.  It  shall  be  the  duty  of  every  guardian  appointed  as  afore- Guardians  to 
said,  at  the  next  court  alter  his  appomtment,  to  exhibit  an  account  count  of  thees- 
upon  oath  of   all  the  estate  of  the  child  or  children  committed  to  tate  of  their 
his   care,   which  he  shall  have  received  into  his  hands  or  posses-  o\a.^  "^"'^ 
sion  ;  and  every  guardian  shall  annually   exhibit  his   account  and 

state  of  the  profits  and  disbursements  of  the  estate  of  such  orphan 
upon  oath,  and  such  accounts  so  to  be  exhibited  shall  be  entered 
by  the  clerks  in  particular  books  to  be  provided  and  kept  for  that 
purpose  only. 

11.  The  justices  of  every  court  of  pleas  and  quarter  sessions  Orphan's  court 
respectively,  shall,  on  the  first  day  of  the  court  that  shall  be  held '"  ^^  held. 
next  after  the  first  day  of  January  in  every  year,  hold  an  orphan's 

court    for   the   purpose    aforesaid  ;    and  every  guardian,  whether  j^^i  o-uardians 
appointed  by  deed  or  will,  or  by  any  court,  shall  exhibit  such  10  render  ac- 
account  as  aforesaid  ;  and  the  justices  of  every  court  shall  at  the  dually '^'^' 
same    court  examine  into    all  accounts    of  guardians,   so   to  be 
exhibited  to  them  ;  and  it  shall  be  the  duty  of  the  clerk  of  the  Clerk  to  issue 
court,  under  the  penalty  of  one  hundred  dollars  to  be  applied  to  the  ^^  "-^"^  s"™- 

c     1  1  •  /r    •  11  1      mons  to  guar- 

use  01  the  ward,  to  issue  ex  ojjicio  summonses,  returnable  to  the  dians  failing  to 
next  court,  against  all  guardians,  whether  resident  in  the  same  or ''™'*"  ^^^i*"  ^'^- 

^     o  o  ■'   ^  counts 

any  other  county,  who  shall  fail  to  appear  and  exhibit  their 
accounts  as  aforesaid  ;  and  if  any  such  guardian  shall  wilfully 
neglect,  after  being  summoned  as  aforesaid,  to  appear,  or  obsti- 
nately refuse  to  exhibit  such  account,  it  shall  and  may  be  lawful 
for  the  court  to  issue  an  attachment  for  such  contempt,  and  to  com- 
mit such  guardian  until  he  or  she  shall  exhibit  such  account. 

12.  The  clerk  for  issuing  the  summons  as  in  the  last  section  Clerk's  fee  for 
directed,  shall  be  entitled  to  demand  and  receive  the  sum  of  sixty  mon's"to^"'^" 
cents,  to  be  collected  by  the  sheriff  or  other  officer  at  the  time  of  dian,  and  how 
serving  said  summons,  and  accounted  for  to  the  clerk  at  the  return  ^^oll^^ted. 

9.  1762,  e.  69,  s.  3. 

10.  1762,  c.  69,  S.  9.; 

11.  1762,  c.  69,  s.  15.— 1516,  c  905,  s-  1  and  2. 

12.  1816,  c.  905,  s.  3.  ""'^--v 


310  GUARDIAN  AND  WARD.     [ChAP.  LIV. 

of  the  same.     Provided,  that  nothing  herein   contained  shall  be 
construed  to  subject  to   payment  of  costs  aforesaid  any  guardian, 
who  may  have,  before  the  return  of  such  summons,  finally  settled 
with  his  ward,  or  will  make  it  appear  to  the  court  that  he  was  pre- 
vented by  sickness  or  other  unavoidable  cause  from  exhibiting  his 
account  as  aforesaid. 
Guardians,  by        13.  Every  guardian,  as  soon  as  conveniently  the  same  may  be 
to  sdUhTper-  ^one,  shall,  by  order  of  the  superior  or  county  courts,  sell  and 
ishable  estate    dispose  of  all  such  ffoods  and  chattels  of  his  or  her  ward  as  are  or 
o      eir  wards,  j^^y   ^^  liable  to   perish,   consume,  or  be  the  worse  for  keeping, 
(except  in  the  instances  hereafter  mentioned,)  for  the  most  that  can 
be   got  for  the   same,   by  public  sale,  having  first  advertised  the 
same  at  the  court  house  and  three  other  public  places  in  the  coun- 
ty, at  least  twenty  days  before  the  sale,  in  reasonable  lots,  and  shall 
for  enhancing  the  price  thereof  give  six  months  credit  upon  good 
security  given  ;  and  such  guardian,  after  the  time  of  such  payment 
is  past,  shall  take  and  pursue  all  lawful  ways  and  means  to  receive 
and  recover  the  money,  upon  pain  of  being  answerable  for  the  same  ; 
and  if  the  same  cannot  be  received  before  the   orphan   entitled   to 
receive  such  money  shall  have  right  to  demand  it,  or  such  guardian 
shall  be  removed  from  his  guardianship,  he  or  she  shall  and  may  as- 
sign such  bond  to  such  orphan,  and  such  assignment  shall  discharge 
such  guardian  for  so  much  against  him  or  her.     And  where  the 
money  of  their  profits  of  any  Orphan's  estate  shall  be  more  than  sufficient  to  main- 
wards  upon      tain  and  educate  him  or  her,  the  guardian  of  such  orphan  shah  lend 
to  account  for   the  surplus  and  all  other  sums  of  money  in  his  hands,  belonging  to 
interest  an-      guch  orphan,  upou  bond  or  note  with  good  and  sufficient  security 
Bonds  to  bear   to  be  repaid  with  interest,  which  interest  such  guardian  shall  ac- 
compound  in-   count  for  annually  ;  and  to  enable  him  to   do   so,   all   the   bonds, 
be  assigned  to  notes  and  Other  obligations  which  he  takes  as  guardian   shall  bear 
wards  upon      compound  interest  ;  and  when  the  person  or  persons  to  whom  such 

their  coming  oi  i     n    i        i  i     •  •  •  vi     i  i  •        i 

age.  money  shall  be  lent  or  their  securities  are  likely  to  become  insol- 

vent, such  guardian  shall  use  all  lawful  means  to  enforce  the  pay- 
ment thereof,  on  pain  of  being  liable  for  the  same  as  aforesaid  ;  and 
an  assignment  of  such  last  mentioned  bond  in  either  of  the  afore- 
1    mentioned  cases  shah  discharge  such  guardian  for  so  much  as  is 
due  thereon. 
In  what  cases        14.   Where  any  orphan  shall  have  lands,  and  a  sufficient  number 
stoc^to'be kept  ^^  slaves   to  Cultivate  and  improve  the  same,  such  slaves,  unless 
on  ward's  land,  otherwise  Ordered  by  the  superior  or  county  courts,  shall  be  em- 
ployed on  the  lands  and  plantations  of  such  orphan  ;  and  all  neces- 
sary horses,  cattle,  sheep  and  hogs  shall  be  kept  upon  such  lands 
and  plantations  of  such  orphan  until  he  shall  come  of  age  ;  and  he 
or  she  shall  have  the  benefit  of  the  increase  and  shall  sustain  the 
Proviso  where  loss,  if  any  shall  happen.      Provided  nevertheless.,  that  if  any  such 
stock  grow  too  numerous,  or  if  it  shall  be  to  the  advantage  of  such 
orphan,  his   or  her  guardian  shall  and  may  sell,  by  order  of  the 
superior  or  county  court,   such  part  of  such  stock  as  such  court 

13.  1762,  c.  69,  S.  10.— 1793,  c.  391,  s.  1.— 1816,  c.  925. 

14.  1762,  c.  69,  s.  U  and  12. 


stock  becomes 
loo  numerous. 


Chap.  LIV.]        guardian  and  ward.  311 

shall  think  fit ;  and  all  plate  shall  be  preserved  and  delivered  to 
such  orphan,  when  at  age,  in  kind  according  to  weight  and  quantity. 

15.  It   shall   be   the   duty  of  every  guardian,   where  it  is  not  in  what  cases 
deemed  to  be  the   interest  of  the  orphan  to  employ  the   slaves  of  anJ  sieves  to 
such  Orphan  upon  his  or  her  lands  and  plantations,  to  hire   out  the  be  rented  and 
slaves  and  rent  out  the  lands  of  such   orphan.      Provided  always,    ^'^^   °^^' 
that  no  guardian  shall  let  or  farm  out  any  land   belonging  to  any  jj^^  ^    ,     , 
orphan,  for  a  longer  term  than  the  orphan  be  of  age,  or  in   other  rented. 
manner  than  by  lease  in  writing,  and  that  special  care  be  had  that 

the  tenant  shall  improve  the  plantation,  and  that  he  or  she  keep 
the  houses,  orchards  and  fences  thereon,  or  that  shall  be  erected 
on  the  same,  in  good  and  sufficient  repair,  and  leave  the  same  so 
at  the  expiration  of  such  lease,  and  that  provision  be  made  in  such 
lease  for  preventing  all  kind  of  waste  and  employing  any  timber  to 
any  other  use,  than  the  immediate  use  of  the  plantation. 

16.  All  sales,  hirings   or  rentings,  made   by  guardians  of  their  Sales,  &c.  of 
orphans'  property,  shall  be  made  and  conducted  in  the  same  man- how  to  be^^*^' 
ner  and  under  the  same  rules,  regulations  and  restrictions,   and  made, 
penalties    for    disobedience,  as  prescribed  for  sales   of  deceased 
persons'  estates  made  by  administrators. 

17.  If  the  guardian  of  any  orphan  shall  suffer  his  or  her  lands  Penalty  ujjon  a 
to  lapse  or  become  forfeited,  or  be  sold  for  the   non-payment  of  f "^g^/^"  j^°g 
taxes  or  other  dues,  such  guardian  shall  be  liable  to  answer  the  full  ward's  land  to 
value  of  the  lands,  so  forfeited  or  sold,  unto  such  orphan  at  his  or  come  forfcited 
her  coming  of  age.     And  if  it  shall   so   happen   that   any  orphan  by  the  non- 
shall  not  have  slaves  to  cultivate  his  or  her   lands,   or  it  is  not  ^es  or^o°ther 
deemed   best  that   they  should   do  so,  and  the  guardian  of  such  dues. 
orphan  cannot  rent  the  same  for  sufficient  to  pay  and  discharge  the 

taxes  and  other  dues  thereof,  and  there  shall  not  be  personal  estate 
sufficient  for  that  purpose,  it  shall  be  lawful  for  such  guardian, 
with  the  consent  of  the  superior  or  county  court,  annually  to  sell 
or  dispose  of,  or  use  so  much  of  the  light  wood,  to  box  so  many 
pine  trees,  or  to  sell  so  much  of  the  timber  on  the  same,  as  shall 
raise  sufficient  to  pay  and  satisfy  the  taxes  and  other  dues  thereon 
and  no  more. 

18.  When  any  of  the  superior  or  county  courts  shall  know  or  Power  and  du- 
be  informed  that  any  guardian  or  guardians,  by  them  respectively  courL  where 
appointed,  or  any  guardian  appointed  by  will  or  deed,  do  waste  or  guardians  mis- 
convert  the  money  or  estate  of  any  orphan  to  his  or  their  own  use,  wanL^^estates 
or  do  in  any  manner  mismanage  the  same,   are  about  or  intend  to  or  when  they 
marry  him  or  her  in  disparagement,  or  neglect  to  educate  or  main-  ^^^  areTikely" 
tain  any  orphan  according  to  his  or  her  degree  and  circumstances,  to  become  in- 
or  where  any  such  guardian  or  his  securities  are  likely  to  become  ®°  ^®"''' 
insolvent,  such  court  shall  have  power  from  time  to  time,  and  at 

all  times  when  they  think  proper,  to  make  and  establish  such  rules 
and  orders,  for  the  better  ordering,  managing  and  securing  such 
estates,  and  for  the  better  education  of  and  maintaining  such 
orphans,  or  to  appoint  another  guardian,  as  they  shall  think  fit  and 
convenient. 

15.  1762,  c   69,  s.  13,  amended. 

16.  1794,  c.  413,  s.  1  and  2. 

17.  1762,  C  69,  S.  14. 

18.  1762,  c.  69,  s.  4,  9  and  16. 


312 


GUARDIAN   AND   WARD.  [ChAP.  LIV. 


Grand  jury  to 
present  all  or- 
phans without 
guardians,  and 
all  abuses  of 
guardians. 


Remedy  for 
sureties  of 
guardians, 
when  such 
sureties  are 
likely  to  suf- 
fer. 


Remedy 
against  guar- 
dians by  pe- 
tition. 


Guardians  to  be 
allowed  dis- 
bursements 
and  expenses, 
and  also  com- 
missions. 


Guardians  of 
orphans  re- 

or 


19.  The  grand  jury  of  every  county  in  this  State  shall,  annually 
at  the  orphan's  court  to  be  holden  for  their  counties  respectively, 
be  charged  with  and  present  to  the  justices  thereof  in  writing  the 
names  of  all  orphan  children  within  their  county,  that  they  shall 
know  have  not  guardians  appointed  them,  and  are  not  bound  out  to 
some  trade  or  employment,  and  all  abuses,  mismanagements  and 
neglect  of  such  guardians  as  hve  within  their  county. 

20.  Where  any  person,  who  is  security  for  the  estate  of  any 
orphan,  shall  conceive  himself  in  danger  by  reason  thereof,  and 
pethion  the  court  where  such  security  was  entered  into  for  relief, 
it  shall  be  lawful  for  such  court  upon  petition  to  them  exhibited, 
forthwith  to  order  summons  to  issue  against  the  party  or  parties, 
with  or  for  whom  the  petitioner  stands  bound,  returnable  to  the 
next  court,  and  thereupon  to  compel  such  party  or  parties  to  give 
sufficient  other  or  counter  securities,  to  be  approved  by  the  said 
court,  or  to  deliver  the  said  estate  to  the  said  petitioner  or  such 
other  persons  as  the  court  shall  direct,  or  they  may  and  are  hereby 
empowered  to  make  such  other  order  or  rule  therein,  for  the  relief 
of  the  petitioner  and  better  securing  such  orphan's  estate,  as  to 
them  shall  appear  just  and  equitable :  Provided  always,  that  the 
court  shall  take  good  and  sufficient  security  of  the  person  or  per- 
sons to  whom  such  estate  shall  be  so  committed,  in  like  manner 
and  under  the  like  penalty  as  is  by  this  act  required  to  be  taken  of 
guardians  appointed  by  the  court,  and  every  such  person  shall  so 
exhibit  his  account  and  be  subject  to  the  rules  and  orders  of  the 
court,  in  the  same  manner,  to  all  intents  and  purposes,  as  is  herein 
before  required  of  guardians,  or  they  are  made  subject  unto. 

21.  In  addition  to  the  remedies  on  their  bonds,  the  same  reme- 
dies may  be  had  against  guardians  by  petition,  either  in  the  supe- 
rior or  county  courts,  in  every  respect,  as  against  executors  and 
administrators. 

22.  It  shall  and  may  be  lawful  for  every  guardian  to  charge  in 
his  account  all  reasonable  disbursements  and  expenses,  and  if, up- 
on rendering  such  account,  it  shall  appear  to  the  court  that  such 
guardian  hath  really  and  bona  fide  disbursed  more  in  one  year  than 
the  profits  of  the  orphan's  estate  do  amount  unto,  for  the  education 
and  maintenance  of  such  orphan,  such  guardian  shall  be  allowed 
and  paid  for  the  same  out  of  the  profits  of  such  orphan's  estate  in 
any  other  year.  Provided  always,  that  such  disbursements  be  in 
the  opinion  of  such  court  suitable  to  the  degree  and  circumstances 
of  the  estate  of  such  orphan.  The  court  shall  likewise  allow  com- 
missions to  the  guardian  for  his  time  and  trouble  in  the  manage- 
ment of  the  orphan's  estate,  in  the  same  manner  and  under  the 
same  rules,  regulations  and  restrictions  as  allowances  are  made 
to  executors  and  administrators. 

23.  Where  any  orphan  or  orphans,  residing  in  any  other  state 
or  territory,  or  who  may  have  removed  from   this  to  any  other 


19.  1762,  c  69,  s.  17. 

20.  1762,  c.  69,  s.  21  and  22. 

21.  1762,  c,  69,  s.  23. 

22.  1762,  c.  69.  s.  18  and  19.— 1799,  c.  536,  s.  2. 

23.  1S20,  C.  1044,  s.  1. 


Chap.  LIV.]        guardian  and  ward.  313 

state   or  territory,   shall  be  entitled  to   any  personal  property  in  residing  in 
this    State,  by  bequest,  gift  or  as   the  next  of  kin  to  any  person  ^o^^^f  otTtam 
dying  intestate   or   otherwise,  it   shall   and  maybe  lawful  for  any  the  personal  es- 
guardian  or  guardians  of  such  orphan  or  orphans,  regularly  appoint-  ^ardf  ilftTis 
ed  in  the  State  where  they  reside,  upon  producing  a  copy  of  his,  State  out  of 
her  or  their  appointment,   properly  authenticated,  and  upon  mak- Ij^^-^. '^^j^^^j^'-j^jj 
ing  it  appear  to  the   court  of  the  county,  in   which  the  property  in  this  State, 
may  then  be,  that  security  has  been  given  in  a  sum  amply  sufficient 
to  cover  all  the  personal  estate,  to   which  said  orphan  or  orphans 
may  be  entitled,  and  also  the  profits  of  the   landed  estates  if  any, 
to  call  upon  any  executor,  administrator  or  guardian,  having  in  his 
or  her  possession  any  personal  estate,  to  which  the  said  orphan  or 
orphans  may  be  legally  entitled,  or  any  moneys  or  debts  for  which 
he  or  she  may  be  hable  to  account,  rents  of  the  landed  estate,  hire 
of  negroes   or    otherwise,  for  a  settlement  by  petition  or  bill  in 
equity  in  the  usual  way,  and  it  shall  be  the  duty  of  the  said  execu- 
tor, administrator  or  guardian  to  account  with  such  guardian,  so  as 
aforesaid   appointed,    as  fully  and  completely  as  they  would  be 
bound  to  account  with  the  orphans   themselves  were  they  of  law- 
ful age  :  Provided,  nothing  herein  contained  shall  be  construed  to 
compel  any  executor  or  administrator  to  account  in  a  shorter  peri- 
od than  they  are  now  by  law  bound  to  do,  or  to  exempt  such 
guardians  from  giving  the  usual  refunding  bonds. 

24.  Upon  any  guardian  or  guardians  producing  to  the  court  of  How  to  pro- 
the  county,  in  which  there  may  be  any  personal  estate  beloneins  'r^^'^  '^^®" 

,  .  ■'/    .  ,  1       "^      1  •      ^    1  -  r   1  •  1     .°  there  IS  no 

to  his  or  their  ward  or  wards,  authenticated  copies  oi  ms  or  their  guardian  in 
appointment  by  the  proper  authority  of  the  state  or  territory,  in  ^^^^  ®^^^^- 
which  the  said  ward  or  v^^ards  may  reside,  and  it  so  happens  that 
there  is  no  guardian  at  the  time  in  the  county  in  which  the  said 
estate  may  then  be,  it  shall  be  lawful  for  such  guardian  or  guardians, 
upon  filing  in  said  court  authenticated  copies  of  their  appointment 
as  guardians,  and  making  it  appear  to  the  said  court  that  security 
has  been  given  as  required  in  the  preceding  section,  to  take  said 
property  into  his  or  their  possession,  and  to  remove  it  to  the  state 
or  territory  in  which  their  ward  or  wards  may  reside. 

25.  Nothing  contained  in  any  of  the  sections  of  this  act  shall  be  Power  of  the 
construed  to  restrain  or  abridge  the  power  of  the  court  of  chancery,  li^'Velation  to 
in  any  matter  or  thing  relating  to  orphans  or  their  estates,  but  the  ^phans  and 

•  J  ^  111  •  1        •         1  ..,.     .         their  estates, 

said  court  may  nolcl,  use,  exercise  and  enjoy  the  same  jurisdiction,  not  to  be 
power  and  authorities  therein,   in  as  full   and   ample  manner  to  all  abridged, 
intents  and  purposes,  as  if  this  acft  had  never  been  made,  anything 
herein  contained  to  the  contrary  nowithstanding. 

26.  It  shall  be  lawful,  on  application  of  the  guardian  of  any  in-  A  court  of 
fant  by  bill  or  petition  to  a  court  of  equity,  setting  forth  facts  which,  re"t  a'sde'^'o'f ' 
if  true,  shew  that  the  interest  of  the  infant  would  be  materially  and  the  real  or  per- 
essentlally  promoted  by  the  sale  of  any  part  of  such  infant's  estate,  ^rXntrif  Ldi 
real  or  personal,  for  the  said  court  to  cause  the  truth  of  such  facts  sale  would  pro- 
to  be  ascertained,  and  thereupon  to  decree  that  a  sale  be  made  by  "restof^ the  in- 
fants. 

24.  1820,  c.  1044,  s.  2. 

25.  1762,  c.  69,  s.  26. 

26.  1827,  c.  33,  s.  1. 

VOL.  I.  40 


314 


HABEAS    CORPUS. 


[Chap.  LV. 


Manner  in 
which  such 
sale  shall  be 
made. 


such  person,  in  such  way  and  on  such  terms,  as   the  court  in  its 
wisdom  shall  adjudge. 

27.  No  sale,  made  under  a  decree  as  aforesaid,  shall  be  valid 
until  the  same  shall  be  subsequently  ratified  by  the  court  ordering 
the  sale  ;  no  conveyance  of  title  shall  be  made  until  the  said  court 
shall  order  such  conveyance  ;  the  person  to  make  the  title  shall 
How  the  pro-  be  designated  by  the  court ;  and  the  proceeds  of  the  sale  shall  be 
*^r d^ ^°A^  ^^  exclusively  applied  and  secured  to  such  purposes,  and  on  such 
cured.  trusts,  as. the  court,  when  it  ratifies  the  sale,  shall  specify  and  di- 

rect :  Provided  always,  and  it  is  hereby  enacted  that  whenever,  in 
consequence  of  a  sale  as  aforesaid,  the  personal  or  real  estate  of 
the  infant  is  saved  from  demands,  to  which  in  the  first  instance  it 
might  be  liable,  it  shall  be  the  duty  of  the  com't  to  declare  and  set 
apart  a  portion  of  said  personal  estate,  or  real  estate  thus  saved,  of 
equal  value  to  the  real  and  personal  estate  sold,  as  property  pur- 
chased by  such  sale  ;  and  in  all  instances  of  sale  under  this  act, 
whereby  real  is  substituted  by  personal,  or  personal  by  real  proper- 
ty, the  beneficial  interest  in  the  property  acquired  shall  be  enjoyed, 
alienated,  devised  and  bequeathed,  and  shall  descend  and  be  dis- 
tributed, as  by  law  the  property  sold  might  and  would  have  been, 
had  it  not  been  sold,  until  a  vahd  disposition,  according  to  the 
character  thus  impressed  upon  it,  shall  be  made  thereof  by  the 
equitable  owner. 


27.  1827,  c.  33,  s.  2. 


Note. — References  to  Adjudged  Cases. 

Sect.  1.  Long  vs.  Rhymes,  3  Murph.  122. 

Sect.  2.  Mills  vs.  McAlister,  1  Hay.  303.  West  vs.  Kitrell,  1  Hawks,  493.  Davis 
vs.  Somerville,  4  Dev.  382.     Harris  vs.  Richardson,  ib.  279. 

Sect.  11.  Branch  vs.  Arrington,  2  Car.  Rep.  252.  Wood  vs.  Brownrigg,  3  Dev. 
420. 

Sect.  16.  County  court  of  Randolph  vs.  Johnson,  3  Hawks,  238. 

Sect.  18.  Bray  vs.  Brumsey,  1  Murph.  227. 

Sect.  20.  Foy  vs.  Bell,  1  Dev.  and  Bat.  475. 


CHAPTER  55. 


HABEAS    CORPUS. 


AN  ACT  FOR  THE  BETTER  SECURITY  OF  PERSONAL  LIBERTY. 


Section 

1.  How  a  writ  of  habeas  corpus  maybe 

obtained  in  vacation. 

2.  Duty  of  the  officer  or  other  person  to 

whom  the  writ  is  directed. 

3.  Duty  of  the  judge,  on  the  return  of 

the  writ. 


Section 

4.  Application  for   the   writ  must    be 

made  within  two  terms   after  im- 
prisonment. 

5.  When  the  superior  court  is  sitting, 

the  writ  must  be  returned  in  open 
court. 


Chap.  LV.] 


HABEAS    CORPUS. 


315 


Section 

6.  Penalty  on  a  judge   for  refusing  a 

writ  of  habeas  corpus. 

7.  Penalty  on  the  officer  to  whom  such 

writ  is  directed,  for  refusing  or  ne- 
glecting to  obey  it. 

8.  Penalty  for  again  imprisoning  a  person 

released  on  a  writ  of  habeas  corpus. 


Section 

9.  When  persons  committed  for  treason 

or  felony  shall  be  entitled  to  a  trial 
or  discharge. 

10.  Same  remedy  by  habeas  corpus  shall 
be  had  by  persons  imprisoned  for 
other  causes  than  criminal  charges. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  ofJ^orth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

Tliat  if  any  person  shall  stand  committed  or  be  detained  for  any  How  a  writ  of 

'',  ^  .  .  ■       1     n    1        1        c  1  r  1  habeas  corpus 

crime,  m  the  vacation  time,  it  shall  be  lawlul  tor  such  person,  so  may  be  ob- 
coramittedor  detained  (other  than  persons  convicted,  or  in  execu- 1?"^^*^  ^'^  ^^'=^" 
tion  by  legal  process,)  or  any  one  on  his  behalf,  to  complain 
to  one  of  the  judges  of  the  supreme  court  or  to  one  of  the  judges 
of  the  superior  courts  of  law  and  equity,  and  the  said  judge,  on 
view  of  the  copy  of  the  warrant  of  commitment,  or  otherwise  on 
oath  that  it  was  denied,  is  authorized  and  required,  on  request  in 
writing  by  any  such  person,  or  any  in  his  behalf,  attested  and  sub- 
scribed by  two  witnesses,  who  were  present  at  the  dehvery  of  the 
same,  to  grant  a  habeas  corpus,  to  be  directed  to  the  officer  or 
other  persons  in  whose  custody  the  party  shall  be,  returnable  im- 
mediately before  the  said  judge. 

2.  Whenever  any  writ  of  habeas  corpus,   issued  as  aforesaid,  P^^y  °f  *^  °f" 

iicGr  or  otficr 

shall  be  served  on  any  officer  or  other  person,  having  in  his  cus-  person  to 
tody  the  person  in  whose  behalf  such  writ  is  issued,  or  be  left  at  yKo."^  ^H  ^"'' 

...  IS  dirGCtCQ. 

the  jail  or  prison  with  any  of  the  under  officers,  under  keepers  or 
deputies  of  the  said  officers  or  keepers,  it  shall  be  the  duty  of  the 
said  officer  or  officers,  his  or  their  under  officers,  under  keepers  or 
deputy,  or  the  person  having  the  custody  of  the  person  claiming  as 
aforesaid,  without  delay,  unless  the  commitment  were  for  treason 
or  felony,  plainly  and  specially  expressed  in  the  warrant  of  com- 
mitment, to  bring  or  cause  to  be  brought  the  body  of  the  party  so 
committed  or  restrained,  unto  or  before  the  judge  of  the  supreme 
court  or  judge  of  the  superior  courts  of  law  and  equity,  by  whom 
the  said  writ  was  issued,  or  such  other  person,  before  whom  the 
said  writ  is  made  returnable,  according  to  the  command  thereof, 
and,  in  case  of  the  absence  of  such,  before  any  one  of  the  judges 
of  either  of  the  said  courts,  together  with  the  true  cause  of  his 
commitment  and  detainer  or  imprisonment. 

3.   Upon  such  return   being  made,  within  two   days  after  the  Duty  of  the 
party  being  brought  before  him,  the  judge  before   whom  the  pris-lefu^,.^  °f  the 
oner  shall  be  brought  as  aforesaid,  shall  discharge  the  said  prisoner  writ, 
from  his  imprisonment,  as  the  case  may  require,  either  absolutely 
without  bail,  or  taking  his  recognizance  with  one  or  more  sureties 
in  any  sum,  according   to  his  discretion,  having   regard  to  the  cir- 
cumstances   of  the    prisoner  and  nature  of  the  oftence,    for  his 
appearance  at  the  next  term  of  the  court,  wherein  the  offence  is 
properly  cognizable,  and  then  shall  certify  said  writ  with  the  return 

1.  31  Ch    2,  c.  2,  s.  2. 

2.  31  Ch.  2,  c.  2,  s.  1. 

3.  31  Ch.  2,  C.  2,  S.  3. 


318 


IDIOTS    AND  LUNATICS,  [ChAP.  LVII. 


February  and 
the  15  th  of 
August. 


Not  lawful  to 
hunt  on  the 
lands  of  anoth 
er  after  adver- 
tisement post- 
ed up  forbid- 
ding it. 


Time  within 
■which  to  sue. 


by  gun  or  otherwise,  between  the  twentieth  day  of  February  and 
the  fifteenth  day  of  August  then  next  succeeding  in  each  year, 
unless  on  his  own  lands  ;  and  if  any  person  shall  kill  or  otherwise 
destroy  any  deer,  within  the  time  before  described  and  contrary  to 
the  meaning  and  intent  of  this  act,  every  such  person  shall  forfeit 
and  pay  for  each  and  every  deer,  so  unlawfully  killed  or  destroyed, 
the  sum  of  four  dollars,  to  be  recovered  before  any  justice  of  the 
peace,  and  applied  one  half  to  the  informer  and  one  half  to  the  poor 
of  the  county  ;  and  in  case  any  slave  shall  kill  or  destroy  any  deer, 
between  the  twentieth  day  of  February  and  the  fifteenth  day  of 
August  in  any  year,  the  owner  of  such  slave  shall  be  liable  to  pay 
the  sum  of  four  dollars  for  each  deer  so  unlawfully  killed  or  de- 
stroyed, to  be  recovered  and  apphed  as  in  the  preceding  clause  of 
this  section.  ". 

2.  It  shall  not  be  lawful  for  any  person  to  hunt,  with  a  gun  or 
with  dogs,  on  the  lands  of  any  other  person,  without  leave  obtained 
from  the  owner  of  said  land,  under  the  penalty  of  forfeiting  ten 
dollars  for  every  offence,  to  be  recovered  by  the  owner  before  any 
justice  of  the  peace  of  the  county  where  such  offence  is  committed 
or  the  offender  resides,  and  applied  one  half  to  his  own  use  and  one 
half  to  the  use  of  the  poor  of  the  county  :  Provided,  that  no  such 
recovery  shall  be  had  for  such  offence,  unless  the  owner  of  the  land 
shall,  by  advertisement  posted  up  in  two  or  more  public  places, 
have  forbid  the  person  so  hunting  by  name,  or  all  persons  general- 
ly, to  hunt  on  his  land,  previous  to  the  commission  of  the  offence  : 
Provided  also,  that  no  recovery  shall  be  had  in  any  case  whatever, 
unless  the  prosecution  is  commenced  within  one  month  after  the 
offence  is  committed. 


2.  1784,  c,  212,  s.  5  and  7,  amended. 


CHAPTER  57. 


IDIOTS  AND  LUNATICS. 


AN  ACT  CONCERNING 
Section 

1 .  County  courts  to  appoint   guardians 

to  idiots  and  lunatics — How  idiocy 
or  lunacy  to  be  ascertained. 

2.  When  county  court  may  order  a  sale 

of  the  real  estate  of  idiots  or  luna- 
tics. 

3.  For  what  purpose  and  in  what  man- 


IDIOTS  AND  LUNATICS. 

Section 

ner  the  court  of  equity  may  order 
a  sale  of  the  real  estate  of  an  idiot 
or  lunatic — Provisos. 
4.  Court  of  equity  may  order  a  sale 
where  the  idiot's  or  lunatic's  land 
is  wanted  for  public  purposes  — 
Proviso. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  it  shall  and  may  be  lawful  for  every  county  court,  whenever 


1.   1784,  c  228. 


I  Chap.  LVIL]       idiots  and  lunatics,  319 

( 

any  idiot  or  lunatic,  possessed  of  property  either  real  or  personal,  County  courts 
shall  be  within  the  jurisdiction    thereof,  to  appoint  him    or  her  a^,a?Jia™sto 
guardian,  taking  bond  for    the   faithful  administration    of  the    trust  idiots  and  lu- 
reposed  in  him  or  her,  in  the  same  manner  as  bonds  are  taken  from'^'^  ^'^^^ 
the  guai'dians  of  orphans,  and  such    guardians  when    so  appointed 
shall  continue  during  the  pleasure  of  the  court,  and  shall  have  the 
same  powers  to  all  intents,  constructions  and    purposes,  and  shall 
be  subject  to  the  same  rules,  orders  and    restrictions  as  guardians 
of  orphans  appointed  by  the  court,  such  idiocy  or    lunacy  to  be  How  idiocy  or 
ascertained  by  the  inquisition  of  a   jury,  by  virtue  of  a  writ  to  be  ^""'^'^7  .*°  |j^ 

•'  1  <J        J   ^        J  3LSC6rt£llIlGCl. 

issued  by  such  court  to  the  sheriff  of  the  county  for  that  purpose. 

2.  Whenever  it  shall  be  made  to  appear  to   any  of  the  county  When  county 
courts,  (seven  justices  at  least  being  present)  either   by  the  war-^°^'"^^|y  °f' 
dens  of  the  county  or  the  guardians    of  any  idiot  or  lunatic,  that  the  real  estate 
the  personal  estate  of  such  idiot  or  lunatic  in  such  county  has  been°^^^g°'^  ^^  '^' 
exhausted,  or  is  insufficient  for    his  or  her   support,  and  that  such 

idiot  or  lunatic  is  Hkely  to  become  chargeable  on  the  parish,  in 
either  of  such  cases  the  said  county  courts  are  hereby  empowered 
to  make  an  order  for  the  sale  or  for  the  renting  of  the  real  estate 
of  such  idiot  or  lunatic,  or  any  part  thereof,  in  such  manner  and 
upon  such  terms  as  they  may  deem  advisable,  and  all  sales,  made 
in  pursuance  of  this  act,  shall  be  valid  to  all  intents  and  purposes 
to  convey  the  whole  interest  and  estate  directed  to  be  sold  by  the 
county  courts  as  aforesaid. 

3.  Whenever  it  shall  appear  to  the   satisfaction  of  a  court    of  For  what  pur- 
equity,  upon  the  petition  of  the  guardian  of  any  idiot    or   lunatic,  pose  and  m 

*  wii3.t  mELniiGr 

that  a  sale  of  any  part  of  the  real  or   personal  estate  of  such  idiot  the  court  of 
or  lunatic  is   necessary  for  his  or  her   maintenance,  or  for  the  dis- '^,1^'^^  "?^y  f"" 

ClGr  3.  S3.1C  01 

charge  of  debts  unavoidably  incurred  for  his  or  her  maintenance,  the  real  estate 
or  whenever  the  court  shall  be  satisfied  that  the  interest  of  the  of  an  idiot  or 
idiot  or  lunatic  would  be  materially  and  essentially  promoted  by  the 
sale  of  any  part  of  the  estate,  real  or  personal,  of  such  idiot  or 
lunatic,  it  shall  be  lawful  for  such  court  to  decree  a  sale  thereof, 
to  be  made  by  such  person,  in  such  way  and  on  such  terms  as  the 
court  in  its  wisdom  shall  adjudge  :  Provided^  that  said  court  may.  Provisos. 
if  it  think  proper,  order  said  petition  to  be  filed  and  its  order  of 
sale  to  be  suspended  until  the  next  of  kin  or  presumptive  heirs  at 
law  of  such  idiot  or  lunatic  have  been  summoned  to  shew  cause 
against  said  petition,  if  any  they  have,  either  by  summons  person- 
ally served  on  them  or  by  advertisement,  as  in  other  cases  of  peti- 
tion notices  and  advertisements  are  ordered  to  be  made  :  Provided 
also,  that  no  sale,  made  under  a  decree  as  aforesaid,  shall  be  valid 
until  the  same  shall  be  subsequently  ratified  by  the  court  ordering 
the  sale  ;  that  no  conveyance  of  title  shall  be  made  until  the  said 
court  shall  order  it ;  that  the  person  to  make  title  shall  be  desig- 
nated by  the  court  ;  and  that  the  proceeds  of  the  sale  shall  be 
exclusively  applied  and  secured  to  such  purposes  and  on  such 
trusts  as  the  court,  when  it  ratifies  the  sale,  shall  specify  and  direct  : 
Provided  further,  that  whenever  in  consequence  of  a  sale  as  afore- 

2.  1801,  c.  589. 

3.  1817,   c.  948,  amended. 


320 


INSOLVENT    DEBTORS.         [ChAP.  LVIII. 


said  the  personal  or  real  estate  of  the  idiot  or  hmtatic  is  saved 
from  demands,  to  which  in  the  first  instance  it  might  be  liable,  it 
shall  be  the  duty  of  the  court  to  declare  and  set  apart  a  portion  of 
said  personal  estate,  or  real  estate  thus  saved,  of  equal  value  to  the 
real  and  personal  estate  sold,  as  property  purchased  by  such  sale  ; 
and  m  all  instances  of  sale  under  this  act,  whereby  real  is  substi- 
tuted by  personal,  or  personal  by  real  property,  the  beneficial  inter- 
est m  the  property  acquired  shall  be  enjoyed,  alienated,  devised 
and  bequeathed,  and  shall  descend  and  be  distributed,  as  by  law 
the  property  sold  might  and  would  have  been,  had  it  not  been  sold, 
until  a  valid  disposition,  according  to  the  character  thus  impressed 
upon  it,  shall  be  made  thereof  by  the  equitable  owner. 
Sa^'irliT'^  ^:  Whenever  the  guardian  of  any  person  non  compos  mentis 
sale,  where  the  shall  State  by  bill  Or  petition,  on  oath  or  affirmation,  to  a  court  of 

S'land^^J"^"  ^^"'^y'  ^^^^  ^^^  ^^"^  o^'  l«"ds  of  his  or  her  ward  are  required  for 
wanted  for  pub- pubhc  purposes,  and  that  the  interest  of  the  person  so  being  non 
Uc  purposes,  coyipos  mentis  and  of  all  others  who  may  be  concerned  therein, 
will  be  promoted  by  a  sale  thereof,  the  same  proceedings  shall  and 
may  be  had,  as  are  directed  and  prescribed  by  law  in  the  case  of 
sales  ordered  to  be  made  on  account  of  any  joint  tenancy  or  ten- 
ancy in  common  :  Provided  nevertheless,  that  the  proceeds  of  the 
sale  of  the  said  real  estate  shall  have  all  the  attributes  of  said  real 
estate,  and  shall  descend  and  be  distributed  as  real  estate  should  do. 

4.   1819,  c.   1022. 


Proviso. 


CHAPTER  58. 


INSOLTENT    DEBTORS. 


AN  ACT  FOR  THE  RELIEF  OF  INSOLVENT  DEBTORS.  , 


Section 

1.  Debtors  remaining  in  close  prison 
twenty  days,  may  prefer  a  petition 
to  two  justices,  or  to  the  county 
court,  or  to  a  judge  of  the  superior 
or  supreme  court,  in  or  out  of  court 
— Creditors  to  be  notified— Oath  to 
be  taken  by  such  debtors — Debtors 
to  be  forever  discharged  of  execu- 
tions against  the  body  for  the  debts 
sued  for  and  costs. 

2.  Proceedings,  when  out  of  court,  to  be 

put  in  writing,  returned  to  court,  and 
recorded. 

3.  Justices  may  discharge  debtors  when 

committed    by  process    from    the 
court  of  another  county. 


Section 

4.  Debtors    remaining  in  close   prison 

twenty  days,  may  file  a  schedule- 
Proceedings  thereon— Oath  to  be 
taken  by  a  debtor  filing  a  schedule. 

5.  Debtors  filing  schedule   and  taking 

the  oath,  to  be  discharged. 

6.  Jailers  to  furnish  debtors  with  food 

when  required,  and  if  the  debtor  is 
unable  to  pay,  may  demand  his  fees 
for  the  same  of  the  creditor — Jai- 
lers, after  twenty  days,  may  notify 
creditors  and  demand  security  for 
their  fees. 

7.  Debtors  taken  upon  a  ca.  sa., or  in  cus- 

tody by  sui-render  of  bail  after  judg- 
ment, for  debts  contracted  since  the 


it 


tJ\-(OLaj^        tA>lxO  60     ^^^»^ 


^il^h^ 


Chap.  LVIII.]       insolvent  debtors. 


321 


Sectio-n 

1st  jMay,  1523,  how  to  procure  their 
discharge — To  give  bond  with  se- 
curiiy  for  theiir  appearance  at  court 
— Proceedings  thereupon . 

8.  Debtor    tendtering  bond,  to  be   dis- 

charged. 

9.  Surety  may  surrender  his  principal. 
10.  Debtor,  having  given  ten  days'  no- 
tice, shall,  upon  motion,  be  permitted 
to  take  the  oath  for  the  relief,  &c. — 
If  creditor  suggests  fraud,  issue  to 
be  made  up — Debtor  may  be  exam- 
ined upon  oath — Appeal  allowed. 

When  the  jury  finds  fraud,  the  debt- 
or to  be  imprisoned  until  he  makes 
a  full  and  fair  dL-iclo£ure — Upon 
making  such  disclosure,  may  take 
the  oath. 

Debtor  to  file  schedule  with  the  clerk 
ten  days  previous  to  the  silting  af 
the  court. 

When  creditor  resides  out   of   this 
State,  to  whom  and  how  the  debtor 
ma.y  give  notice. 
14.  Property,  debts  &c.  contained  iu  any 


11. 


12. 


13. 


Section 

scliedule,  to  vest  in  the  sheriffof  the 
county  where  such  schedule  may  be 
filed — Sheriff's  duty  thereupon. 

!&■.  Court  to  apj)oint  commissioners  to 
divide  the  debtor's  effects  among 
bis  creditors. 

16-.  Debtor,  after  his  discharge,  not  to  be 
arrested  again,  but  an  exgcution  may 
issue  against  his  properly  after- 
wards acquired. 

17.  Debtor  swearing  falsely,  to  be  guilty 
of  perjury. 
No  female  to  be  imprisoned  for  debt. 
Debtor  having  takeu  the  benefit  of 
prison  bounds,  may  take  the  benefit 
of  this  act  without  going  into  close 
prison. 
Any  creditor  notifted,  may-   suggest 
fraud,  and  any  other  creditor  may 
make  himself  a  party  to  the  issue- 
Any  one  or  more  of  the  creditors 
may  appeal  without  the  others. 

2.1.  After  issue  made  up,  the  debtor  shall 
not  discharge  himself,  but  by  trial 
or  consent. 


IS 
19 


20. 


1.   Bk  if  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the   same, 
That  if  any  person  or  persons,  as   well  free   persons   of  color   as  Debtors  re- 
others,  shall  be  taken  or  charged  on  mesne  process    or  execution '^'^ining;  in 
for  any  debt,  and  shall  have  remained    in.  prison  by  the  space  of  twenty^days, 
twenty  days,  it  shall  be  lawful  for  two  iustices  of  the  peace,  or  the  may  prefer  a 

/^ri  1  ^  ■  r^i'i  petition  to  two 

county  court  oi  pleas  and  quarter  sessions,  or  any  one  oi  the  judges  justices,  or  to 
of  the  superior  or  supreme  courts  of  this  State,   either  in  or  out  of^^^county 

■*  .  .       '■     ^  ,  .  IT-  1     •     1         T       court,  or  to  a 

court,  upon  petition  oi  such  prisoner   imder  his   or   their  hands,  judge  of  the 
whereof  notice  shall  be  given  to  the  person  or  persons,  his  or  their  ®"P^"°'^  "'^  ^"." 

,      .    .  ^  "^  1-1    preme  court,  in 

executors,  administrators,  attorneys,  or  agents,  at  whose  suit  such  or  out  of  court, 
prisoner  or  prisoners  shall  be  imprisoned,  to  require  the  sheriff.  Creditors  to  be 
jailer  or  keeper  of  any  prisoner  within  their  respective  jurisfiictions,  ^°   ®  notified, 
to  bring  before  such  justices  of  the  peace,  county  court^  or  judge 
of  the  superior  or  supreme  court  issuing  such  warrant,  either  in  or 
out  of  court,  the  body  of  any  person  being  in  prison  as  aforesaid, 
together  with  a  list  of  the  several  writs,   mesne  processes  and  ex- 
ecutions, with  which   he  or  they  is   or  are  charged    in  the  several 
jails  aforesaid,  which  warrant  every  such   sheriff,  jailer  or  keeper 
is  hereby  commanded  to  obey,  and  such  prisoner  or  prisoners  com- 
ing before  the  said  justices  or  judges  (the  creditor  or  creditors,  if 
resident  in  this  State,  at  whose  suit  he  is  confined,  being  first  per- 
sonally summoned,  according  to  the   directions  in  this  act,)  if  he 
or  they  have  no  visible  estate,  real  or  personal,  and  shall'  make  oath  „  ^,  ,  ,    , 

.  /L  .  i\iri  -J*'  r  Oath  to  be  ta- 

( or  affirmation   as    the   case    maybe,)   before  the  said  justices  of  ken  by  such 
the  peace,  or  county  court,  or  judge  of  the   superior   or  supreme '^^'^^°''*' 


1.  1773,  c.  100,  s.  1.  — ISIO,  c.  802.  — 1303,  c.  716,  s.  2.— 1810,  c.  797.-1830,  c.  33. 
VOL.  1.  41 


322 


INSOLVENT    DEBTORS.  [ChAP.  LVIII. 


Debtors  to  be 
forever  dis- 
charged of  exe 


court  respectively,  issuing  such  warrant,  that  he  hath  not  the 
worth  of  ten  dollars  in  any  worldly  substance,  either  in  debts  owing 
to  him,  or  otherwise  howsoever,  over  and  above  his  wearing  ap- 
parel, one  bed  and  its  necessary  furniture,  one  wheel  and  cards, 
also  one  loom,  working  tools  and  arms  for  muster,  one  bible  and 
testament,  one  hymn  book,  and  one  prayer  book,  and  all  neces- 
sary school  books,  and  that  he  hath  not  at  any  time  since  his  im- 
prisonment or  before,  directly  or  indirectly,  sold,  assigned,  or 
otherwise  disposed  of,  or  made  over  in  trust  for  himself  or  other- 
wise, any  part  of  his  real  or  personal  estate,  whereby  to  have  or 
expect  any  benefit  or  profit  to  himself,  or  to  defraud  any  of  his 
creditors,  to  whom  he  is  indebted,  and  if  there  be  no  person  pre- 
sent that  can  prove  the  contrary,  then  such  person,  by  such  court 
.or  justices,  without  form  of  trial,  shall  be  immediately  set  at  lib- 
terty,  and  shall  stand  forever  discharged  of  all  executions  against 
the  debts  sued  ^^^  body,  for  such  debts  so  sued  for  and  all  costs  of  suit, 
for  and  costs.  2.  The  said  justices  of  the  peace  and  judge  of  the  superior  and 
Proceedings,  supreme  court  respectively,  before  whom  such  prisoner  or  prison- 
court,  to  be  put  ers  shall,  upon  oath  or  affirmation,  have  discharged  themselves, 
m  writing,  re-   vvhen  the  proceedings  are  before  them  out  of  court,  shall  put  the 

turriBcl  to  court  ...  .  -. 

and  recorded,  'same  ui  writing,  under  their  hands,  and  return  the  same  mto  court 
from  whence  the  mesne  process  or  execution  issued,  and  the  pro- 
ceedings, in  case  of  a  discharge  from  a  ca.  sa.  issued  by  a  justice  of 
the  peace,  shall  be  returned  to  the  next  county  court,  there  to  be 
kept  on  record,  under  the  penalty  of  ten  dollars  for  each  justice  or 
judge,  for  such  omission  and  neglect,  to  be  paid  to  the  person  in- 
jured by  order  of  said  court. 

3.  The  justices  of  the  peace  of  any  county  shall  and  may  legally 
cause  to  be  brought  before  them  any  person  confined  for  debt 
within  the  jail  of  their  county,  and  administer  to  him  the  oalh  pre- 

court'of'another  scribed  for  the  relief  of  insolvent  debtors,   and   grant  him  a  dis- 
county.  charge,  as  well   when   the  execution,   under  which  the  person  of 

said  debtor  is  confined,  has  issued  from  the  court  of  another 
county,  as  where  it  issued  from  the  court  of  their  own  county  : 
Provided^  that  nothing  in  this  section  shall  be  construed  to  dis- 
pense with  the  notice  which  the  first  section  of  this  act  requires  to 
be  served  on  the  creditor  or  creditors  of  such  debtor. 

4.  If  any  person  or  persons  shall  be  taken  or  charged  in  mesne 
process  or  execution  for  any  sum,  and  shall  have  remained  in 
prison  by  the  space  of  twenty  days,  and  shall  have  any  estate,  real 
or  personal,  and  be  minded  to  deliver  up  his  or  their  effects  to  his 
or  their  creditors,  it  shall  be  lawful  for  such  prisoner  to  prefer  a 
petition  to  the  court,  from  whence  the  process  issued,  setting  forth 
the  cause  of  imprisonment  and  an  exact  account  of  his  or  their 
estate  and  all  circumstances  relating  thereto,  which  petition  sub- 
scribed by  him  and  schedule  shall  be  lodged  with  the  clerk  of  the 
said  court,  from  vi'hich  such  process  issued,  twenty  days  at  least 
before  the  next  succeeding   court.     And  upon   such  petition  so 


.Justices  may 
discharge  debt 
ors  when  com- 
mitted by  pro- 
cess from  the 


Debtors  re- 
maining in 
close  prison 
twenty  days, 
may  file  a 
schedule. 

Proceedings 
thereupon. 


2.  1773,  c.  100,  s.  2. 

3.  1816,  c.  907. 

4.  1773,  e.  100,  s.  3.— 1809,  c.  766. 


Chap.  LVIIl.]       insolvent  debtors.  B2S 

filed,  the  clerk  of  the  said  court  shall  issue,  under  his  hand  and 
seal,  a  copy  of  the  said  schedule  and  a  notice  to  the  creditor  or 
creditors,  at  whose  suit  such  prisoner  is  or  shall  be  confined,  set- 
ting forth  the  substance  of  the  said  petition  and  summoning  them 
to  attend  the  next  succeeding  court,  to  shew  cause,  if  any  they 
have,  why  the  prayer  of  the  said  petitioner  should  not  be  granted, 
which  notice  being  duly  served  upon  the  person  or  persons,  his, 
her  or  their  executors,  administrators,  attorney  or  agent,  at  whose 
suit  such  prisoner  or  prisoners  shall  be  imprisoned,  ten  days  at 
least  before  the  sitting  of  the  said  court,  the  court  shall  cause  the 
prisoner  or  prisoners  to  be  brought  before  them,  and  if  the  said 
creditor  or  creditors,  at  whose  suit  he  is  imprisoned,  shall  appear, 
or  being  duly  summoned  shall  fail  to  appear,  the  court  shall  pro- 
ceed to  examine  the  nature  of  the  said  petition  in  a  summary  way, 
and  shall  tender  to  such  person  an  oath  (or  affirmation  as  the  case 
may  be)  to  the  effect  following  : 

"I  A.  B.  in  the  presence  of  Almighty  God,  solemnly  swear,  ^g^j|^^^°j^^^g|j^'^^ 
(or  affirm,)  profess  and  declare  that  the  schedule  now  dehvered,  fiiiagasche- 
and  by  me  subscribed,  doth  contain,  to  the  best  of  my  knowledge  "^^'^^ 
and  remembrance,  a  full,  just,  true  and  perfect  account  and  dis- 
covery of  all  the  estate,  goods  and  effects,  unto  me  any  wise  be- 
longing, and  such  debts  as  are  to  me  owing,  or  to  any  person  in 
trust  for  me,  and  of  all  securities  and  contracts,  whereby  any 
money  may  become  hereafter  payable  or  any  benefit  or  advantage 
accrue  to  me  or  to  my  use,  or  any  other  person  or  persons  in  trust 
for  me,  and  that  I,  or  any  other  person  or  persons  in  trust  for  me, 
have  not  land,  money  or  stock  or  any  other  estate,  real  or  person- 
al, in  possession,  reversion  or  remainder,  of  the  value  of  the 
debt  or  debts  with  which  I  am  charged  in  execution,  and  that  I 
have  not  directly  or  indirectly  sold,  lessened  or  otherwise  disposed 
of  in  trust,  or  concealed,  all  or  any  part  of  my  lands,  money, 
goods,  stock,  debts,  securities,  contracts  or  estate,  whereby  to 
secure  the  same,  to  receive  or  expect  any  profit  or  advantage 
thereof,  or  to  defraud  or  deceive  any  creditor  or  creditors,  to  whom 
I  am  indebted,  in  any  wise  howsoever  :  so  help  me  God." 

5.   If  such  prisoner  take  such    oath   for  affirmation)    and    the  Debtors,  filing 
court  be  convinced   of  the  truth  thereof,  the  schedule  so  sub- taking  the  oath, 
scribed  being   filed   with   the   clerk  of  the  court,  for  the   better  ^o  be  discharg- 
information  of  the  creditors  of  such  prisoner,  then  it  shall  be  law- 
ful for  the  court,  before  whom  such  oath  was  taken,  by  warrant,  to 
©ommand  the   sheriff,  jailer  or  keeper  of  any  prison  forthwith  to 
set   at  liberty   such   prisoner,  which  warrant  shall  be   a   sufficient 
discharge  to  such  sheriff,  jailer  or  keeper,  and  shall  indemnify  him 
or  them  against  any  escape  or  escapes,  or  action  or  actions  whatso- 
ever, which  shall   or  may  be  brought,   commenced,  or  prosecuted 
against  him  or  them  by  reason  thereof;  and  if  any  such  action  shall 
be  commenced  against  any  sheriff  or  other  officer  for  performing    ' 
his  duty  in  pursuance  of  this  act,  such  sheriff  or  other  officer  may 
plead  the  general  issue,  and  give  this  act  in  evidence. 

6.  1773,  c.  100,  S.4. 


\... 


324 


INSOLVENT    DEBTORS-  _[ChAP.  LVIII. 


the  debtor  is 
unable  to  pay, 
may  demand 
his  fees  for  the 
same  of  the 
creditor. 


Jailers,  after 
twenty  days, 
may  notify 
creditors,  and 
demand  secu- 
rity for  their 
fees. 


Jailers  to  fur-  6.  Whenever  any  debtor  shall  be  actually  confined  within  the 
with  food  when  walls  of  a  prison,  by  reason  of  mesne  process  for  debt,  capias  ad 
required,  and  if  satisfaciendum^  ov  Surrender  by  bail  after  iudement,  it  shall  be  the 
duty  oi  the  jailer  to  lurnisJi  said  prisoner  with  necessary  lood  dur- 
ing his  confinement,  should  the  prisoner  require  the  same,  and  the 
jailer  shall  be  authorized  to  demand  the  same  fees  therefor,  as  are 
allowed  by  law  for  keeping  other  prisoners,  and  may,  if  the  pris- 
oner be  unable  to  discharge  them,  recover  the  same  from  the  party 
at  whose  instance  such  debtor  was  confined  in  jail ;  and  when  the 
debtor  shall  have  remained  in  jail  for  the  space  of  twenty  days,  it 
shall  be  lawful  and  sufficient,  for  the  sheriff"  or  jailer  to  give  notice 
thereof  to  the  plaintiff,  his  agent  or  attorney,  and  to  demand  secu- 
rity of  him  for  the  prison  fees,  that  may  arise  after  the  expiration  of 
twenty  days,  and  if  he  shall  fail  to  give  such  security,  then  to  dis- 
charge such  debtor  out  of  custody. 
Debtors  taken  7.  When  any  debtor  shall  be  taken  upon  any  capias  ad  satisfa- 
upon  a  ca  sa    cicndum.  OV  be  in  custody  by  surrender  of  bail  after  iudgment,  for 

orm  custody  by  ,      '  i        •  ,     -^  i  i  -n     i         i  Jo  ' 

surrender  of  any  debt,  contracted,  either  by  note,  biJJ,  bond,  open  account  or 
me\^^fr  i'^tf' Otherwise,  since  the  first  day  of  May,  1823,  and  shall  be  desirous 
contracted  to  take  the  benefit  of  the  oath  for  the  relief  of  insolvent  debtors,  or 
since  the  first    ^f  rendering  a  full  and  fair  schedule  of  his  property,  it  shall  and 

May,  1823  how  i       ,        r  i  r  i     i    i  i  i         i       -/v    r    i 

may  be  lawiul  tor  such  debtor  to  tender  to  the  sheriii  oi  the  county, 
his  lawful  deputy,  coroner  or  any  constable,  by  whom  he  may  have 
been  taken,  a  bond  payable  to  the  party  at  whose  instance  the  ar- 
rest was  made,  with  good  and  sufficient  securities  in  twice  the 
amount  of  the  debt,  conditioned  for  his  appearance  at  the  next 
court,  to  which  the  execution  shall  be  returnable,  then  and  there 
to  stand  to  and  abide  by  such  proceedings  as  may  be  had  by  the 
court  in  relation  to  his  taking  the  benefit  of  said  act,  and  in  case  of 
failure  to  appear,  judgment  shall  be  rendered  up  instanter  upon 
said  bond  against  the  principal  and  his  securities,  to  be  discharged 
upon  the  payment  of  the  debt  and  costs,  and  where  an  execution 
issues  thereon,  neither  of  the  defendants  shall  be  entitled  to  the 
benefit  of  the  provisions  of  this  section  :  Provided,  that  if  either  of 
the  parties  to  the  said  bond  shall  be  desirous  to  have  an  issue  made 
up  and  submitted  to  a  jury,  a  jury  shall  be  immediately  empanelled 
to  try  such  issue,  and  the  plea  of  non  est  factum  shall  only  be  re- 
ceived upon  the  party  making  oath  of  its  verity  :  ^nd  provided 
further,  if  it  shall  be  made  appear  satisfactorily  to  said  court  that 
said  debtor  is  prevented  from  attending  court  by  sickness  or  other 
cause,  to  be  judged  of  by  the  court,  the  case  shall  be  continued 
over  to  the  next  court,  at  which  term  the  same  proceedings  shall 
be  had  as  if  he  had  appeared  at  the  first  term  :  And  provided  fur- 
ther, if  such  debtor  shall  die  in  the  mean  time,  it  shall  be  an  abso- 
lute discharge  of  said  bond  :  Provided  nevertheless,  that  when  any 
debtor  shall  be  taken  as  aforesaid,  within  twenty  days  of  the  sitting 
of  said  court,  said  bond  shall  be  conditioned  for  his  appearance  at 
the  succeeding  term  of  the  court  aforesaid  :  Provided  ahcays,  that 
when  any  capias  ad  satisfaciendum  shall  be   directed  to  any  con- 


to  procure 
their  discharge, 

To  give  bond 
with  security 
for  their  ap- 
pearance at 
court. 

Proceedings 
thereupon. 


6.  1773,  c.  100,  3.  S  and  9.— 1821,  c.  1103,  amended. 

7.  1S22,  c,  1131,  S.  1.— 1834,  0.  8,  S.  2. 


Chap.  LVIII.]     insolvent  debtors*  325 

stable  and  he  shall  take  bond  as  aforesaid,  such  bond  shall  be  con- 
ditioned for  the  defendant's  appearance  at  the  county  court  of  the 
county  in  which  such  constable  resides  :  and  it  shall  be  the  duty 
of  all  officers,  having  in  their  possession  any  such  bond,  to  return 
the  same,  together  with  all  the  papers  they  may  have  appertaining 
to  the  case,  on  or  before  the  second  day  of  the  court  to  which  the 
same  is  returnable,  under  the  penalty  of  fifty  dollars,  to  be  recov- 
ered at  the  suit  and  for  the  benefit  of  the  person  aggrieved. 

8.  Upon  such  debtor  tenderina:  such  bond  as  in  the  last  section  Debtor  tender- 
mentioned,  it  shall  be  the  duty  of  the  sheriff,  deputy,  coroner,  or  JJ-|,5^^^;] 
constable,  as  the  case  may  be,  to  release  him  from  confinement  or 
custody. 

9.  It  shall  be  lawful  for  the  said  security  to  surrender  the  prin-  Surety  may 
cipal  in  discharge  of  himself,  in  open  court  of  the  county  to  which  surrender  his 

,  ■,  ^  m  prill  cipsil. 

the  capias  ad  sutisfaciendum  is  returnable,  or  to  the  sheriff  or  other 
officer,  as  the  case  may  be,  of  said  county.  And  the  security  is 
hereby  authorized  to  exercise  all  the  power,  which  by  law  special 
bail  have  over  their  principal. 

10.  Upon  the  appearance  of  such  debtor  at  the  court  aforesaid,  Debtor,  hav- 
it  shall  be  lawful  for  him,  either  in  person  or  by  attorney,  to  move  Jw-s^' notice'^ 
the  court  to  be  admitted  to  take  the  oath  prescribed  for  the  relief  shall,  upon  mo- 
of  insolvent  debtors,  or  to  swear  to  the  schedule  previously  filed  In'iued'^o^take 
with  the  clerk  of  said  court,  agreeably  to  the  provisions  of  this  act  the  oath  for 
hereinafter  contained  ;  and  it  shall  be  the  duty  of  said  court,  upon^^^^*^*^ ' 
such  debtor  making  it  appear  to  them  that  at  least  ten  days'  notice 

before  the  court  has  been  given  in  writing  to  his  creditors  or  their 
agent  or  attorney,  of  the  intention  to  avail  himself  of  the  benefit  of 
this  act,  to  administer  the  oath  herein  prescribed,  or  to  swear  him 
to  the  schedule  aforesaid,  (as  the  case  may  be,)  and  to  direct  the 
clerk    to  make  an   entry  of  the   same  upon   his  minutes,  which 
shall   exempt   the    body  of   such   debtor   from   imprisonment   for 
debt,  in  all  cases  where  notices  may  have  been  given  to  the  cred- 
itors, which  notices  shall  be  filed   with   the   clerk  of  said  court  : 
Provided  always,   if  any   creditor  or  creditors  shall  suggest  any  if  creditor  sag 
fraud  or  concealment  of  any  property,  money  or  effects,  it  shall  be  fuf  t/te'made" 
the  duty  of  the  court  to  direct  an  issue  to  be  made  up  and  tried  by  up. 
a  jury,  at  the  first  term,  before  such  debtor  is  sworn,  and  on  sue h  Dg^jj^j,.  ^^^     {^^ 
trial,  it  may  be  lawful  for  the  creditor  to  have  the  debtor  examined,  examined  upon 
on  oath,  before  the  said  jury.      Provided  further,  that  if  either  of"*^*^  " 
the  parties  shall  be  unprepared  for  the  trial  of  such  issue,  the  court 
may  continue    the   same,  under  the  same  rules  and  regulations  by 
which  suits  at  law  are  now  continued.     And  if  the  said  jury  shall 
find  that  there  is  any  fraud  or  concealment,  or  if  said  debtor  shall 
fail  or  refuse  to  answer  upon  oath,  or  if  the  said  debtor  shall  fail  to 
make  it  appear  to  the  court  that  he  has  given  the  necessary  notice 
to   the  creditor  or  creditors,  at  whose  instance  he  may  have  been 
arrested,  or  to  his  or  their  agent  or  attorney,  then  and  in  that  case 
the  said  debtor  shall  be  deemed  in  the  custody  of  the  sheriff,  and 

8.  1822,  c.  U31,  s.  2.  . 

9.  1822,  c.  1131,  s.  3. 

10.  1822,  C.  1131,  s.  1.—  1835,  c.  12. 


326  INSOLVENT    DEBTORS.  [ChaP.  LVIII. 

the  court  shall  adjudge  that  he  be  imprisoned,  until  a  full  and  fair 
disclosure  of  all  the  money,  property  or  effects  be  made  by  said 
debtor,  and  until  he  has  given  the  necessary  notice  as  aforesaid  to 
be  judged  of  by  the  court,  which  he  may  do  at  the  next  succeeding 
Appeal  allow-  court  :  Provided,  that  if  either  party  to  the  issue,  made  up  under 
®"-  the  provisions  of  this  section,  is  dissatisfied  with  the  verdict  of  the 

.  jury,  he  may  appeal  as  in  other  cases. 
finds"fraud,T^e  H-  Where  any  debtor,  upon  the  finding  of  the  jury  that  there  is 
debtor  to  be  fraud  or  Concealment,  shall  be  adjudged  to  be  imprisoned  until  a 
ti??ie  makes™  ^Lih  and  fair  disclosure  be  made,  such  debtor,  upon  making  a  full 
full  and  fair  and  fair  disclosure  in  writing  of  all  the  money,  property  or  effects, 
'.  and  upon  giving  the  necessary  notice,  shall  be  discharged  according 
such  disclosure,  to  the  provisions  of  the  last  section   of  this  act,  by  taking  the  fol- 

may  take  the    '  lowing  Oath  : 
oath.  ° 

"  I,  A.  B.  do  solemnly  swear  that  the  disclosure,  now  by  me 
made  and  subscribed,  doth  contain  a  full  and  true  account  and  dis- 
covery of  all  the  estate,  goods  and  effects,  unto  me  in  any  way 
belonging,  and  of  all  debts  unto  me  owing,  or  to  any  person  in 
trust  for  me,  and  of  all  securities  or  contracts,  whereby  any  money 
may  become  payable  or  any  benefit  accrue  to  me,  or  to  any  person 
in  trust  for  me,  and  that  I  or  any  person  in  trust  for  me  have  not 
any  land,  money,  or  other  estate  in  possession,  reversion  or  re- 
mainder, not  herein  fully  disclosed,  and  that  I  have  not,  directly 
or  indirectly,  sold,  assigned  or  otherwise  disposed  of  in  trust,  or 
concealed,  any  land,  money  or  other  estate,  not  herein  fully  dis- 
closed, whereby  to  secure  the  same,  or  to  expect  or  receive  any 
profit  or  advantage  :  so  help  me  God."  Provided  ahoays,  that 
should  the  creditor  or  creditors,  at  whose  instance  the  issue  afore- 
said was  made  up,  think  that  a  full  and  fair  disclosure  is  not  made 
by  said  debtor  in  writing,  it  shall  and  may  be  lawful  for  the  creditor 
or  creditors  to  have  an  issue  made  up,  under  the  direction  of  the 
court,  and  tried  in  the  same  manner,  as  in  cases  where  there  is  a 
suggestion  of  fraud  or  concealment  of  property,  money  or  effects  ; 
and  in  the  event  of  the  jury  finding  against  the  debtor,  his  impris- 
onment shall  be  continued  as  before. 
Debtor  to  file  12.  When  any  debtor,  taken  upon  any  capias  ad  satisfaciendum 
the  clerk  ten  01'  ifi  custody  as  aforementioned,  shall  be  desirous  to  render  a  full 
days  previous  and  fair  schedule  of  his  property,  money  or  effects,  he  shall  file  the 
the  court/""  °  Same  with  the  clerk  of  the  court,  at  least  ten  days  before  the  sit- 
ting of  the  court,  at  which  he  proposes  to  avail  himself  of  the 
benefit  of  the  tenth  section  of  this  act,  and  upon  his  being  permit- 
ted to  swear  to  the  said  schedule,  the  same  proceedings  shall  be 
had  thereon  as  may  be  had  on  schedules  filed  under  the  former 
provisions  of  this  act. 
When  creditor        J  3,  When  the  party,  at   whose  instance   any    debtor   may  be 

rcsiciGS  out  01  ••  •  • 

this  Slate,  to     arrested  or  be  in  prison  shall  reside  out    of  the  State,  the   notice 
whom  and  how  j.gqyjj.g(j  j^y  ^i-jjg  3^1  to  be  served  uDon  him  may  be  served  on  his 

the  debtor  may        ^  •'  ,  ii''ii  1  rii- 

give  notice.       attorney  or  agent,  or  the  constable,  who  has  charge  01  the  clami  ; 

11.  1S30,  c.  26,  s.  1  and  4. 

12.  ^822,  c.  1131,  s.  .5.  ,-, 

13.  1773,  c.  100,  s.  8,  anvended. 


Chap.  LVIIL]       insolvent  debtors.  327 

and  in  case  there  be  no  agent  or  attorney  known  to  the  debtor, 
who  resides  in  the  county,  in  which  said  debtor  intends  to  apply 
for  reUef  under  this  act,  the  debtor  may  advertise  in  any  newspaper 
in  this  State  ;  and  such  service  on  the  constable,  agent  or  attorney, 
or  advertisement  in  the  newspaper,  as  aforesaid,  shall  be  sufficient 
notice  as  to  the  creditor  or  creditors,  at  whose  instance  the  debtor 
may  be  arrested  or  imprisoned. 

14.  All  the  lands,  tenements  and  hereditaments,  which  shall  be  ^^^^'^Ij''. 
contained  in  any  schedule  filed  under  any  of  the  provisions  of  this  tained  in  any 
act,  for  such  use,  interest,  rieht  or  title  as  such  prisoner  or  debtor  ^'^^'^4"^'^° 

.  .  -r  .  V6st  in  tile 

then  shall  have  in  the  same,  which   he  may  lawfully  depart  withal,  sheriff  of  the 
and  all  goods  and  chattels  whatsoever,  and  all  debts    and  demands  county  where 

...  such  sciieQule 

due  to  such  debtor,  and  set  forth  and  described  in  said  schedule,  may  be  filed. 
shall  vest  in  the  sheriff  of  the  county,  where  such  schedule  may 
be  filed  ;  and  such  sheriff  is  hereby  authorized  and  required  to  sell 
at  public  vendue,  and  convey  the  said  property,  real  and  personal,  th^eupoa"  ^ 
to  any  person  or  persons  whatsoever,  for  the  best  price  that  can 
be  got  for  the  same,  and  to  receive  the  money  arising  from  such 
sales,  and  to  sue  lor  and  collect  debts  and  demands  contained  in 
said  schedule,  in  his  own  name  ;  and  the  money  so  received  and 
collected,  the  said  sheriff  shall  upon  oath  pay  into  the  office  of  the 
court  of  pleas  and  quarter  sessions,  where  the  said  schedule  may 
be  filed,  to  be  distributed  as  hereinafter  mentioned.  Provided 
always^  that  such  prisoner  or  debtor  shall  be  entitled  to  retain  such 
articles  as  are  excepted  in  the  oath  prescribed  for  insolvent  debt- 
ors. 

15.  The  judge  of  the  superior  court,  or  the  court  of  pleas  and  court  to  ap- 
quarter  sessions,  where  any  schedule  maybe  filed  as  aforesaid,  P.oi"t  commis- 
shall  appoint  two  commissioners,  who   shall  have    full    power  to  vide  the  debt- 
examine  into  the  claims  of  all   and   singular  the    creditors  of  the  or's  effects 

1  111  1  •     1  amonsr  his 

person  or  persons  imprisoned,  as  well  those  at  whose  suit  lie  was  creditors. 
committed  as  of  all  others  ;  and  the  said  commissioners  shall,  by 
advertisement  at  the  court  house,  or  in  some  newspaper  or  gazette 
if  they  deem  it  necessary,  make  known  the  time  at  which  they 
propose  to  examine  such  claims,  which  shall  be  within  sixty  days 
after  their  being  appointed,  and  upon  such  creditors,  their  execu- 
tors or  administrators,  agents  or  attorneys  appearing  before  thein 
and  satisfying  them  of  the  justice  of  their  claims,  they  shall  pro- 
ceed to  make  distribution  amongst  each  and  every  of  the  creditors 
so  appearing,  in  proportion  to  their  respective  demands  ;  and  the 
clerk  of  the  said  court  is  hereby  directed  to  pay  such  moneys,  so 
received  from  such  insolvent's  estates,  into  the  hands  of  the  said 
commissioners  for  the  purposes  aforesaid. 

16.  No  person  shall  be  arrested  or  imprisoned  for  any  debt  ex- Debtor,  after 
isting  at  the  time  of  his   discharge  from  prison,  under  any  of  the  ^J,*  j^^f^^^  ^^_®' 
provisions  of  this  act,  where  due  notice  may  have  been  given  to  rested  again, 
the  creditor  at  whose  instance  he  was  imprisoned,  and  proved  and  uon  maTisTue 
filed  at  the  time  of  his  discharge  ;  and  no  person,  giving  bond  and  against  his 

property  after- 
wards acquired. 

14.  1773,  c.  100,  3.  5.— 1S27,  c.  44.— 1830,  c.  26,  s.  2. 

15.  1773,  c.  100,  s.  6. 

16.  "1773,  c.  100,  s.  7.-.-1S22,  c.  1131,  s.  4.-1733,  c.  350,  s.  1. 


328 


INSOLVENT    DEBTORS.  [ChAP.  LVIII. 


Debtor  swear- 
ing falsely,  to 
be  guilty  of  per- 
jury. 


No  female  to 
be  imprisoned 
tor  debt. 

Debtor  having 
taken  the  bene- 
fit of  prison 
bounds,  may 
take  the  benefit 
of  this  act 
without  going 
into  close  pri- 
son. 


Any  creditor 
notified 
may  suggest 
fraud,  and  any 
other  creditor 
may  make  him- 
self a  party  to 
the  issue. 

Anj'  one  or 
more  of  the 
creditors  may 
appeal  without 
the  others. 


After  issue 
made  up,  debt- 
or shall  not 
discharge  him- 
self, but  by  tri- 
al or  consent. 


being  discharged  without  commitment  to  close  prison,  as  prescrib- 
ed in  this  act,  shall  be  arrested  or  imprisoned  by  any  creditor, 
whose  debt  existed  at  the  time  of  his  discharge,  and  who  may  have 
had  due  notice  thereof :  but  in  all  cases  of  the  discharge  of  an  in- 
solvent debtor,  under  any  of  the  provisions  of  this  act,  execution 
may  issue  against  any  estate  afterwards  acquired  by  him. 

17.  If  any  person,  who  shall  take  any  of  the  oaths  prescribed  in 
this  act  for  the  relief  of  insolvent  debtors,  shall  upon  indictment  of 
perjury  be  convicted  thereon,  he  shall  suffer  all  the  pains  of  wilful 
perjury,  and  shall  never  after  have  any  of  the  benefits  of  this  act, 
but  may  be  sued  and  imprisoned,  as  though  he  had  never  taken 
the  oath  of  insolvency. 

18.  No  female  whatever  shall  be  imprisoned  for  debt. 

19.  Any  debtor,  who  may  be  in  prison  on  account  of  debt, 
whether  under  mesne  process,  or  otherwise,  may  take  the  benefit 
of  the  prison  bounds,  by  giving  security  as  required  by  law,  and 
shall  not  be  compelled  to  go  into  close  prison  in  order  to  avail 
himself  of  this  act.  Provided  however,  and  it  is  hereby  expressly 
declared,  that  any  debtor,  against  whom  an  issue  is  found,  or  who 
for  other  cause  is  adjudged  to  be  imprisoned  until  he  make  a  full  and 
fair  disclosure  of  his  property,  shall  not  be  entitled  to  the  benefit 
of  the  prison  bounds,  but  shall  remain  in  close  prison,  until  dis- 
charged by  being  permitted  to  take  the  oath  of  insolvency. 

20.  Any  creditor  notified  may  suggest  fraud,  and  the  court  may 
permit  as  many  other  of  the  creditors,  who  may  have  been  noti- 
fied, as  shall  choose,  to  make  themselves  parties  to  the  issues,  but 
the  debtor  shall  not  be  compelled  to  answer  the  suggestions  of 
fraud  in  more  than  one  case  :  and  if  any  creditor,  where  there  are 
more  creditors  than  one,  shall  be  dissatisfied  with  the  judgment  of 
the  court,  he,  or  as  many  as  choose,  may  appeal,  notwithstanding 
some  of  the  creditors,  who  may  have  made  themselves  parties  to 
the  issues,  may  decline  to  appeal,  and  the  suit  shall  be  prosecuted 
afterwards  by  the  appealing  creditors. 

21.  After  an  issue  made  up,  the  debtor  shall  not  be  at  liberty 
to  discharge  himself,  as  to  the  creditors  in  that  issue,  except  by 
trial  and  verdict  in  the  same,  or  a  discharge  by  consent. 

17.  1793,  c.  100,  s.  10. 

18.  1823,  c.  1209. 

19.  1818,  c.  964,  amended. 

20.  Amendment. 

21.  Amendment. 


Note. — References  to  Adjudged  Cases. 

Sect.  1.  Burton  vs.  Dickens,  3  Murph.  103.  Howard  ijs.  Pasteur,  ib.  270.  Jordan 
vs.  James,  3  Hawks,  110. 

Sect.  7.  Williams  vs.  Yarbrongh,  2  Div.  12.  Arrington  vs.  Bass,  3  Dev.  95. 
Speight  as.  Wooton,  ib.  327.— Grain  vs.  Long,  ib.  371. — Page  vs.  Winningham,  1  Dev. 
and  Bat.  113. 

Sect.  9.     Mooring  vs.  James,  2  Dev.  254. 

Sect.  10.     Folsome  vs.  Gregory,  1  Dev.  033. 


Chap.  LIX.] 


INSPECTIONS. 


329 


CHAPTER  59. 


INSPECTIONS. 


AN  ACT  FOR  ESTABLISHING  PUBLIC  LANDINGS  AND  PLACES  OF 
INSPECTION,  AND  FOR  THE  APPOINTMENT  OF  INSPECTORS  AND 
REGULATION  OF  INSPECTIONS. 


Section 

1 .  Former  places  of  landing  and  inspec- 

tion continued — And  county  courts 
may  appoint  others 

2.  County  courts  to  appoint  inspectors. 

3.  Inspectors  to  give  bonds — Remedy 

on  the  bonds. 

4.  Inspectors  to  attend  at  the  times  and 

places  appointed. 
6.  No  exporting  merchant  to  be  an  in- 
spector. 

6.  Not  more  than  six  inspectors  to  be 

appointed  in  any  town. 

7.  No  inspector  allowed  to  appoint  a 

deputy — Proviso  in  favor  of  flour 
inspectors. 

8.  Inspectors  to  hold  their  offices  during 

good  behavior — Proviso  as  to  Wil- 
mington— How  inspectors  shall  be 
removed  for  misbehavior. 

9.  How  vacancies  in  the  office  of  in- 

spectors to  be  filled,  when  the  coun- 
ty court  is  not  in  session. 

10.  Penalty  for  acting  as  inspector  before 

qualification. 

11.  Duty  of  inspectors  of  tobacco. 

12.  Inspectors  to  give  a  manifest  of  each 

hogshead. 

13.  Owners  of  condemned  tobacco  may 

have  it  reinspected  after  a  certain 
time. 

14.  No  tobacco  to  be  exported  without 

inspection. 

15.  Penalty  for  falsely  branding  a  hogs- 

head of  tobacco. 

16.  Punishment  for  forging,  &c.  a  stamp, 

note,  or  receipt  for  tobacco — Man- 
ner of  proceeding  when  a  note  is 
lost. 

17.  How  a  person  demanding  his  tobacco, 

alleged  to  have  been  injured  since 
inspection,  shall  proceed. 

IS.  County  court  may  appoint  turners  up 
and  coopers  of  tobacco. 

19.  Inspectors  to  report  to  court  the  be- 
havior of  turners  up,  &c.  of  tobacco 


VOL. 


42 


Section 

• — Anj'  person  may  turn  up,  &,c.  his 
own  tobacco. 

20.  County  court  to  appoint  pickers  of 

tobacco. 

21.  No  tobacco  inspector  to  buy  tobacco. 

22.  County   courts    may  build    or   rent 

warehouses,  &c. 

23.  When  a  tobacco  warehouse  is  burned, 

the  inspector  shall  not  be  liable  on 
his  notes,  &c. 

24.  County  courts  to  regulate  warehouse 

rent,  &.c 

25.  How  warehouses  maybe  repaired  or 

rebuilt. 

26.  Private  warehouses  to  have  the  same 

rules  as  to  rent,  &c. 

27.  No  inspector  of  flour  shall   sell  or 

trade   in  flour,  or  buy,  except  for 
his  own  use. 
2S.  Degrees  of  flour. 

29.  What  flour  shall  pass  inspection. 

30.  Penalty  on  miller,   manufacturer  or 

seller,  for  not  complying  with  the 
foregoing  provisions. 

31.  Inspectors  may,  in  certain  cases,  un- 

pack the  barrels  of  flour. 

32.  Persons  selling  barrels  of  flour,  not 

containing  the  requisite  quantity,  to 
be  liable  for  the  deficiency. 

33.  How  casks  of  flour  to  be  inspected. 

34.  Owner  of  flour,  dissatisfied  with  the 

inspection,  how  to  obtain  a  re-exam- 
ination. 

35.  Penalty  for  exporting  flour  not  pass- 

ed by  inspector. 

36.  Penalty  on  master,  &c.  for  receiving 

on  board  his  ship  uninspected  flour 
— Proviso. 

37.  Cask   of    flour   once  inspected,   not 

liable  to  be  reinspected  in  sixty 
days. 

38.  Cask  not  to  be  condemned  for  short 

measure  in  certain  cases,  if  it  con- 
tain one  hundred  and  ninetysix 
pounds. 

I^^C, /-    ^^    ^^   '^^ 

19.    ^o  -  4/• 


7- 

C^    .fx 


/ 


f? 


330 


INSPECTIONS. 


[Chap.  LIX. 


#« 


Section 
39.  Penalty  for  packing  flour  in  a  brand- 
ed cask. 

Penalty  for  altering  inspector's  brand, 
&c. 

Penalty  on  inspectors  of  flour  for 
neglect  of  duty. 

Flour  may  be  sold  in  the  town  of 
Fayetteville  without  inspection. 

Duty  of  inspectors  of  beef,  &c.  and 
penalties  for  misconduct. 

How  beef  and  pork  shall  be  in- 
spected . 

Hog's  lard  to  be  inspected. 

Rice,  how  inspected. 

Fish,  how  inspected. 

Pitch  and  turpentine,  how  inspected 
— Tar,  how  inspected. 

Inspectors  to  make  a  difference  be- 
tween hard  and  soft  turpentine,  dip- 
pings and  scrapings. 

Makers  of  tar,  pitch  and  turpentine 
to  brand  their  barrels  with  the  ini- 
tials of  their  names — Inspectors  to 
keep  a  book  for  entering  the  makers' 
names,  &c. 

Beef,  &c.  to  be  reinspected  if  not  ex- 
ported in  sixty  days — Tar,  pitch  or 
turpentine,  in  twenty  days. 

No  cooper,  &c.  to  make  barrels  for 
sale  but  according  to  the  directions 
of  this  act. 


40. 
41. 
42. 
43. 
44. 

45. 

46. 
47. 

48. 

49. 


50. 


61. 


52. 


Section 

53.  Seller   or  exporter  of   beef,   &c.  to 

produce  the  inspector's  certificate, 
&c. 

54.  Penalty  on  masters  of  vessels  for  re- 

ceiving on  board  any  such  articles 

uninspected. 
Staves,  heading  and   shingles,  how 

inspected. 
Lumber,  how  inspected. 
Saw-mill  lumber,  how  inspected. 
Steam-mill  lumber,  on  the  Cape  Fear 

river,  how  inspected. 
Inspector's  fees,  by  whom  to  be  paid. 
Staves,  heading,  &c.  to  be  culled. 
Purchaser  of  staves  or  heading,  on 

the  Cape  Fear,  to  pay  one  half  price 

for  the  refuse. 
No  inspector  shall  purchase  cullings, 

&c. 
Penalty  for  any  but  a  legal  inspector 

of  staves,  &c.  acting  as  such. 
How  fines  and  forfeitures  under  this 

act  to  be  recovered  and  applied. 
Disputes   about   extra  cooperage  in 

the  town  of  Wilmington,  how  to  be 

determined. 
Regulations  as  to   the  sale  of  fire- 
wood in  towns. 
Penalty  on    inspectors    for    taking 

greater  fees  than  the  law  allows. 

/^^€'.     ^    ^i'   •^^ 


55. 

56. 
57. 

58. 

59. 
60. 
61. 


62. 


63. 


64. 


65. 


66. 


67. 


Former  places 
of  landing  and 
inspection  con- 
tinued —  and 
county  courts 
may  appoint 
others. 


County  courts 
to  appoint  in- 
spectors. 


Inspectors  to 
give  bonds. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  all  such  places,  as  have  heretofore  been  estabhshed  by  law 
or  by  the  order  of  any  county  court  within  its  county  as  public 
landings,  or  as  places  of  inspection,  shall  be  and  remain  public 
landings  and  places  of  inspection  respectively  ;  and  the  several 
county  courts  are  hereby  authorized  to  appoint  such  public  land- 
ings and  such  place  or  places  of  inspection,  within  their  re- 
spective counties,  as  they  may  think  necessary,  proper  and  con- 
venient :  and  on  any  petition  for  public  landings,  the  said  court 
may  order  the  costs  to  be  paid  by  the  petitioner  or  by  the  county. 

2.  The  several  county  courts,  except  when  herein  otherwise 
directed,  are  hereby  authorized  to  appoint  one  or  more  inspectors, 
for  the  place  or  places  of  inspection  so  designated,  whose  duty  it 
shall  be  to  inspect  such  article  or  articles  as  by  law  are  required 
to  be  inspected,  which  are  or  may  be  brought  to  his  place  of  in- 
spection for  that  purpose  ;  which  inspectors  shall  reside  in  the 
county  where  appointed  and  take  the  oath  or  oaths  required  by  law. 

3.  Every  inspector  so  appointed  shall,  before  he  enters  upon 
or  executes  his  office,  enter  into  bond  with  two  good  and  sufficient 


1.  1784,  c.  206,  s.  4.— 1789,  c.  303.— 1790,  c  331,  s.  3.- 

2.  1793,  c.  386.— 1811,  c  807,  s.  6.-1811,0.812. 

3.  1784,  c.  206,  S.  2.— 1819,  c.  990. 


-1793,0.386.-1822,0.  1139,S.  2. 


Chap.  LIX.]  inspections.  331 

securities,  in  the  penalty  of  one  thousand  dollars,  for  the  true  and 
faithful  discharge  of  his  office,  according  to  the  directions  of  this 
act,  (which  bond  and  securities  every  court  respectively  is  hereby 
empowered  and  required  to  demand  and  take,  and  cause  to  be  ac- 
knowledged before  them  in  open  court  and  recorded,)  and  the  said 
bond  shall  be  made  payable  to  the  State  of  North  Carohna,  and 
shall  be  in  force  for  the  term  of  three  years  after  such  inspector 
shall  be  out  of  office  ;  and  in  the  name  of  the  State  any  person  or  Remedy  on  the 
persons  injured  may  and  shall,  at  his,  her  or  their  costs  and  char-^°"'^®' 
ges,  commence  and  prosecute  a  suit  or  suits  on  such  bond  against 
the  parties  therein  bound,  their  executors  or  administrators,  and 
shall  and  may  recover  all  damages,  which  he,  she  or  they  may  have 
sustained,  by  reason  of  the  breach  of  the  condition  thereof,  and  the 
said  bond  shall  not  become  void  upon  the  first  recovery,  or  if  judg- 
ment shall  be  given  against  any  plaintiff  or  plaintiffs,  who  may  sue 
on  such  bond,  but  may  be  put  in  suit  and  prosecuted  from  time  to 
time,  for  the  benefit  of  the  party  or  parties  injured,  until  the 
whole  ])enalty  expressed  in  such  bond  shall  be  recovered  :  Pro- 
vided alivays,  that  if  any  verdict  or  judgment  shall  pass  for  such 
inspector  or  his  security,  the  person  or  persons,  at  whose  instance 
such  suit  shall  be  prosecuted,  shall  pay  double  costs  ;  and  the  bond 
so  given  shall  be  annually  renewed,  under  the  same  rules,  regula- 
tions and  penalties  as  are  prescribed  in  the  case  of  clerks  of  courts. 

4.  It  shall  be  the  duty  of  the  several  inspectors,  so  appointed,  auenTauhe" 
to  attend,  at  the  times  and  places  by  law  established  and  directed,  times  and 

to  -inspect,  according  to  the  nature  of  their  several  appointments,  l^^*^^  appomt- 
all  such  tobacco,  beef,  pork,  rice,  tar,  pitch,  turpentine,  staves 
and  heading,  fish,  flour,  butter,,  flaxseed,  sawed    lumber,  ton  tim- 
ber and  shingles,  as  shall  be  exposed  for  sale  for  exportation  with- 
in their  respective  counties. 

5.  No  merchant,  who  shall  be  concerned  in  trade  and  in  the  No  exporting 

,  r  If  •  1  •    1      1       1  •  1      merchant  to  be 

purchase  oi  produce  lor  exportation,  which  the  laws  require  to  be  an  inspector, 
inspected,  shall  be  considered  qualified  to  be  appointed  as  in- 
spector of  any  of  the  articles  of  produce,  which  by  law  are  or  shall 
be  required  to  be  inspected.  And  if  any  person,  receiving  an 
appointment  as  aforesaid,  shall  be  concerned  as  a  merchant  in  the 
exportation  of  produce,  he  shall  forfeit  the  sum  of  sixty  dollars,  to 
be  recovered  by  action  of  debt  in  the  name  of  the  State,  in  any 
court  of  record  having  jurisdiction  thereof,  one  half  to  the  use  of 
the  State,  and  the  other  half  to  the  use  of  the  informer  :  and  the 
person  so  offending  shall  moreover  be  removed  from  office,  by  the 
county  court  of  the  county  in  which  he  resides,  on  motion  made 
by  the  solicitor  of  the  county,  and  on  producing  the  record  of  the 
recovery  of  the  penalty  above  mentioned  :  Provided  nevertheless, 
that  nothing  herein  contained  shall  be  considered  as  applying  to 
shopkeepers  and  others,  who  do  not  buy  or  sell  produce  for 
exportation. 

6.  It  shall  not  be  lawful  for  any  of  the  county  courts  of  this  Not  more  than 

^  .        .  ^    ,  •'  ,  .•'    .  SIX  inspectors 

fetate  to  appoint  in  any  of  the  towns  more  than  six  inspectors,  ex-  to  be  appointed 

in  any  town. 

4.  1777,  c.  120.— 1784,  c,  206,  S.  2. 

5.  1805,  c.  681,  s.  1  and  2. 

6.  1805.  c.  681,  s-  3. 


332  INSPECTIONS.  [Chap.  LIX. 

cept  for  the   purpose  of  inspecting  timber  ;    in  which  case   the 
courts  respectively  may  appoint  such  number  as  they  may  consider 
necessary  and  proper. 
No  inspector        ^-   ^^  ^^^^^^^  ''^'^^  ^^  lawful  for  any  person,  appointed  inspector 
allowed  to  ap-  agreeably  to  this  act,  to  appoint  any  person  or  persons  to  act  in  said 
pomt  a    eputy.  ^fg^g  q|-  inspection  under  him  or  them,  but  it  shall  be  the  duty  of 
every  inspector,  so  appointed,  to  attend  personally  to  the  inspec- 
tion of  all  articles  or  produce,  which  the  said  inspector  is  entitled 
to  inspect.      And  if  any  inspector  shall  employ  any  person  or  per- 
sons  to   act  as   aforesaid,  such  inspector  shall  forfeit  and  pay  the 
sum  of  two  hundred  dollars,  to  be  recovered  by  action  of  debt  in 
any  court  of  record   having   cognizance  thereof,  for  every  such 
offence,  one  half  to  the  use  of  the  State  and  the  other  half  to  the 
Proviso  in  favor  use  of  the  person  suing  for  the  same  :   Provided,  that  if  the  quantity 
of  flour  in-       Qf  flour,   brought  to   any  place  of  inspection  within  this    State, 
should  at  any  time  be  so  great  that  the  inspector  cannot  examine 
the  same  with  sufficient  despatch,  or  if  by  reason  of  sickness  he 
should  be  incapable  of  discharging  the  duties  of  his  office,  in  such 
cases  it  shall  be  lawful  for  him  to  appoint  one  or  more  persons,  of 
good  repute  and  skill  in  the  quality  of  flour,   to  assist  him  in  the 
execution  of  his  office.      Such  assistants,  having  taken  the  oath  or 
affirmation  prescribed  by  law  for  the  inspectors  of  flour,  shall   be 
authorized   to  inspect  and  brand  flour  in  the  same  manner  as  the 
inspector  himself  might  do  :  Provided,  that  the  said  inspector  shall 
be  liable  for  all  misconduct  In  office  of  his  said  deputies. 
Inspectors  to         ^*   ^^^  public  inspectors  of  commodities  shall  hold  their  office 
holdtheirof-    during  good  behavior  :   Provided,  the  inspectors   of  naval   stores, 
food  behavior   provisions,  staves,  heading  and  lumber  for  the  town  of  Wilmington 
Proviso  as  to    shall  be  appointed  by  the  county  court  of  New  Hanover  every  two 
w^ilmington.     yg^rs,  at  the  first  court  held  after  the  first  day  of  May  :  And  pro- 
How  inspectors '^^^^^/^''^^^^5  that  where  any  inspector  shall  be  guilty  of  malprac- 
shallbere-       tice  or  misbehavior  in  his  office,  on  complaint  being  made  to  the 
behavior!'^     ^' county  court,  they  shall  issue  a  citation  and  cause  him  or  them  to 
appear  before  the  said  court,  at  the   ensuing   term  ;  and   if  the 
charges  shall  be  supported  by  good  and  sufficient  testimony,   and 
confirmed  by  the  verdict  of  a  jury,  they  shall  remove  such  inspec- 
tor from  his  said  office,  and  appoint  another  in  his  stead,  who  shall 
hold  his  office  during  good  behavior  as  aforesaid. 
How  vacancies      9.  Whenever  there  shall  be  a  vacancy  in  the  office  of  inspector 
inspe'ctors'^^to    '"  ^"7  county,  while  the  county  court  is  not  holding  its  session,  it 
be  filled  when  shall  be  lawful  for  any  three  justices   of  such  court   to  nominate 
cour*t°is"not  in   ^"d  appoint  some  other  fit  and   proper  person  as  inspector,  until 
session.  the  next  succeeding   court  for   such  county,  or  if  any  inspector 

shall  be  rendered  incapable  of  performing  his  duty  by  sickness  or 
other  accident,  it  shall  then  be  lawful  for  such  inspector,  by  and 
with  the  consent  of  three  justices,  to  appoint  some  other  person 
as  assistant  during  the  said  inspector's  sickness  or  other  disability, 
which  consent  shall  be  certified  under  their  hands  and  lodged  with 
the  clerk  of  the  court  of  the  county  wherein  the  inspector  resides  ; 

7.  1796,  c.  462.— 1811,  c.  807,  s.  2. 

8.  1791,  c.  345,  s.  7.— 1831,  c.  53. 

9.  1784,  c.  206,  s.  3.— 1799,  C.  539,  S.  2. 


Chap.  LIX.]  inspections.  833 

and  the  person  so  appointed  shall  take  the  same  oath  as  inspectoi's 
appointed  by  the  courts  ;  and  the  inspector  shall  be  liable  to  the 
same  j5nes  and  penalties  for  the  said  assistant's  bad  conduct  and 
misbehavior  as  he  is  liable  for  his  own. 

1 0.  No  person  shall  act  as  inspector  without  being  first  qual-  Penalty  for 
ified    according;  to    law,  under  the   penalty    of  forty    dollars    for  acting  as  m- 

,        rr  1  TIC  •      •     I  •      •         1  spector  before 

every  such  oiience,  to  be  recovered  betore  any  jurisdiction  bav- qualification, 
ing  cognizance  thereof,  one  half  to  the  use  of  the  State,  the  other 
half  to  the  person  suing  for  the  same. 

11.  It   shall  be   the   duty  of  inspectors  of  tobacco  to  examine  Duty  of  in- 
well  and  carefully,  by  breaking  in   at  one   or  more  places,  every  ^P^^^J"^^  °^  ^°' 
hogshead,  cask  or  parcel  of  tobacco,  broughtto  their  respective  ware- 
houses for   inspection ;  and  such  tobacco  as  they  shall  find  good, 

sound  and  merchantable,  and  fit  for  exportation,  they  shall  cause 
to  be  immediately  headed,  hooped  and  the  number,  net  weight 
and  tare,  with  the  name  of  the  warehouse,  stamped  or  marked 
thereon  ;  and  for  all  tobacco,  so  passed  by  them  in  crop  hogsheads, 
they  shall  give  to  the  owner  thereof  a  receipt  or  note,  containing 
the  warehouse,  number,  gross,  tare  and  net  weight,  and  the  kind 
of  tobacco,  and  therein  obhge  themselves  to  deliver  the  same  to- 
bacco to  such  owner  or  his  order  when  demanded  ;  and  for  all 
such  tobacco  as  they  shall  pass  in  parcels,  they  shall  give  the  own- 
er a  transfer  note ;  and  all  such  parcels  of  tobacco  they  shall  im- 
mediately pack  and  prize  into  hogsheads,  of  at  least  one  thousand 
net  weight,  to  be  by  them  paid  in  discharge  of  such  transfer  notes 
to  the  persons,  who  shall  be  possessed  of  them,  deducting  there- 
from, when  returned  to  them,  at  the  rate  of  two  per  cent,  for  the 
first  month,  and  one  per  cent. .for  every  month  after  one,  for  shrink- 
age ;  and  may  also  charge,  out  of  such  transfer  notes,  thirty  pounds 
of  tobacco  for  the  cask  ;  and  where  tobacco  is  ofliered  for  inspec- 
tion, and  it  appears  to  them  part  thereof  is  only  fit  to  pass,  the 
owner  thereof  may  separate  such  good  tobacco  from  the  bad  ;  and 
where  the  inspectors  at  any  warehouse  shall  disagree  in  their  opi- 
nion of  the  quality  of  any  hogshead  of  tobacco,  or  where  the  to- 
bacco to  be  inspected  is  the  property  of  one  of  the  inspectors, 
then  another  sworn  inspector  from  the  nearest  warehouse,  or  jus- 
tice of  the  peace,  shall  be  called  and  shall  decide,  and  receive  or 
reject  the  same. 

12.  Where  any  tobacco  shall  be  delivered  out  of  a  warehouse,  inspectors  to 

,       .  11111  11  •       1  •  §|i^6  a  manitest 

tne  inspectors  shall  and  they  are  hereby  required  to  give  a  separate  of  each 
manifest  of  each  hogshead   of  tobacco,  by  them   so  delivered,  inliogshead. 
which  shall  be  inserted  the  marks,  number  and  weight  of  said  to- 
bacco. 

13.  The  proprietor  of  condemned  tobacco  shall  have  the  privi- ^^j,;|^jj°^  ^p_ 
lege  of  letting  said  tobacco   remain  in  the  warehouse  six    months  bacco  may 
after  the  inspection  thereof,  and  shall  be  entitled  to  have  such  to-  gpJcted "after  a 
bacco  reinspected,  if  he  think  proper.  certain  time. 

10.  1799,  c.  539.  s.  1,  amended. 

11.  1777,  c.  120,  s.  3.— 1789,  c.  302,  s.  1.— 1817,  c.  942,  s.  1. 

12.  1789,  c.  302,  s.  3. 

13.  1794,  c.  425., 


334  INSPECTIONS.  [Chap.  LIX. 

No  tobacco  to  14.  No  tobacco  shall  be  exported  out  of  this  State,  until  the 
wlthouUnspec- ^^"^'^  ^^^  been  carried  to  some  place  of  inspection,  and  there 
tion.  viewed,  passed  and  stamped    according  to   the  directions    of  this 

act. 
MM^\^°'^  d         15.   If  any  person  shall  brand,  or  cause  to  be  branded,  any  hogs- 
ing  a  hogshead  head  of   tobacco,   wliich  the   inspectors  had  not  examined   and 
of  tobacco,       branded,  so  as  to  induce  a  belief  that  such  hogshead  had  been  law- 
fully inspected,    such  person  shall  forfeit  and  pay  the  sum  of  one 
hundred  dollars,  to  be  recovered  before  any  county  court  by  any 
person  suing  for  the  same  to  his  own  proper  use. 
Punishment  ig.   If  any  person  shall  forge  or  counterfeit  the  stamp,  note  or 

a  stamp,"note,'^  receipt  of  any  inspector,  or  offer  for  sale  or  payment,  or    demand 
or  receipt  for    of  any  inspector,  tobacco  on  any  such    forged    notes  or    receipts, 
knowing  them  to  be  such,  or  shall  cause  to  be  exported  any  hogs- 
head or  cask  of  tobacco,   stamped  with  a  forged  or  counterfeit 
stamp,  or  shall  take  any  staves,  plank  or  heading,  out  of  any  hogs- 
head of  tobacco  stamped  as  herein  directed,  after  such  hogshead 
shall  have  been  delivered'from  any  of  the  public  warehouses,  every 
person,  so  offending  and  being  thereof  legally  convicted,  shall  be 
adjudged  a  felon,  and   suffer  as   in  cases  of  felony  ;  and  if  any 
inspector's  note  shall  be  lost  or  destroyed,  the  owner  thereof  may, 
on  making  oath  before  some  magistrate,  of  the  quantity  of  tobacco 
mentioned  in  the  same,  and  that  the  note  is  lost  or  destroyed,  and 
that  he  or  she  so  making  oath  is  the  lawful  owner  thereof,  and  enti- 
tled to  receive  the  tobacco  therein    mentioned,  obtain  a  certificate 
from  the  justice  administering  such  oath,  and  shall  thereby  be  enti- 
tled to  receive  the  tobacco  for  which  the  lost  note  was  given  ;  and 
if  any  person  shall  be  convicted   of  making  a  false   oath,  or  pro- 
ducing a  forged  certificate  in  the  above  case,  and  knowing  the  same 
to  be  forged,  he  shall  suffer  as  in  cases  of  wilful  and  corrupt  per- 
Mannerof  pro-J^^y  '  Provided,  that  in  all  such  cases  of  lost  or  destroyed  notes, 
ceeding  where  the   Owner  thereof,  before  obtaining  a  note  for  the  same,  shall  give 
a  note  IS  o&t.    j^qj^^j  ^jj^j-i  approved  security  to  the  inspectors,  who  gave  the  lost 
or  destroyed  note,  or  their  successors,  in  double  the  amount  of  the 
value  of  the  tobacco,  to  indemnify  the  person,  who  may  thereafter 
produce  the  original  note,  the  value  by  him  paid  for  the  same  ;  the 
bond  so  taken    shall  be  assignable,  by    the   inspectors  taking   the 
same,  to  the  persons  producing  the  original  notes,  who  may  main- 
tain an  action  of  debt  thereupon,  and  such  assignment  shall  exon- 
erate the  inspectors  from  any  claim  or    demand   against   them,  by 
virtue  of  the  original  note. 
How  a  person        17.   When  any  person    demands  tobacco    of  any  inspector  on 
demanding  his  jj    notes,  and  shall  have  cause  to  doubt  the  same  hath  received 

tobacco,  al-  V  •  •  i  •        •  r     i  i     • 

legedtohave  damage  alter  mspection,  three  justices  of  the  county,  not  bemg 
cWini'ilo!.'^  merchants,  where  the  tobacco  is,  shall,  on  the  application  of  the 
tion,  shall  pro-  person  demandmg  the  tobacco,  repau'  nnmediately  to  the  ware- 
^^^'^'  house,  and  there  (being  first  sworn  by  some  other  justice,  who  is 

hereby  empowered  to  administer  such  oath)  well  and  carefully  view 

14.  1777,  c  120, s.  5. 

15.  1789,  c.  302,  s.  4. 

16.  1777,  c.  120,  s.  8 —1817,  C.  942,  s.  2. 

17.  1777,  c.  120,  s.  10. 


Chap.  LIX.]  inspections.  335 

and  examine  the  said  tobacco  in  dispute,  and  give  their  opinion 
thereon,  whether  the  same  ought  to  pass  or  be  rejected,  according 
to  the  best  of  their  judgment  and  consciences,  without  favor  or 
affection  :  and  if  in  their  judgment  it  is  good,  sound,  and  fit  for  ex- 
portation, the  tobacco  passed  shall  be  a  sufficient  tender  to  the 
party  demanding  on  the  notes  for  the  same  ;  and  in  that  case  the 
party,  so  calling  a  review,  shall  pay  and  satisfy  the  justices  so 
attending  eighty  cents  each,  but  if  they  reject  the  tobacco  so 
reviewed,  in  that  case  the  inspectors  shall  pay  the  said  justices 
eighty  cents  each,  and  shall  be  Hable  to  the  owner  of  the  notes, 
for  the  value  of  the  tobacco,  so  rejected,  and  such  damages  as  he 
may  sustain  by  lying  out  of  the  same  from  the  time    of  demanding.  Cou^ty  ^ourt 

18.  Any  number  of  persons,  not  exceeding  ten,    shall  be   ap- may  appoint 
pointed    by   the    court  of  the    county,  where  there  may  be    an  ^^^J^^^g  ^f  to"*^ 
inspection  of  tobacco  established,  to  turn  up  and  cooper  tobacco  ;  bacco. 

and  they  shall  hold  their  appointments  during  good  behavior. 

19.  The  inspectors  at  each  and  every  inspection  shall  be  iudses  inspectors  to 

>  *f  .."^.V       rpport  to  court 

of  the  behavior  of  the  said  turners  up  ;  and  if  they  in  their  opniion  the  mis- 
find  said  turner  or  turners  up  deficient  in  his  or  their  duty,  the  said  ^^'^'^^'°'"  of 
inspectors  shall  and  they  are  hereby  required  to  report  the  said  of  tobacco. 
turner  or  turners  up,  so  misbehaving,  to  the  court  of  the  county  in 
which  they  are  appointed  ;  and  if  he  or  they  shall  be  found  guilty 
of  the  charge    alleged  by  said  inspectors,  in  that  case  the  court  is 
hereby  directed  and  required  to  remove  such  person  or  persons 
from  said  appointment,   and  appoint  another  or  others   in  his   or 
their  stead  :  Provided,  that  any  person  bringing  tobacco  to  any  of  Any  person 
the  said  inspectors,  is  hereby  entitled,    either  by  himself  or  other-  "^ay  mm  up 

,.  ■!  •!  1-^1  J    ^     o^c.  his  own  to- 

wjse,  to  turn  up,  pick,  prize  and  cooper  his  own  tobacco,  and  to  bacco. 
have  free  access  to  any  of  the  prizes  erected  by  the  county,  where 
such  inspector  is,  for  the  purpose  of  prizing  the  same.  And  if 
any  dispute  should  arise  between  the  parties  bringing  tobacco  to 
any  of  the  said  warehouses,  the  right  of  preference  to  the  said 
prizes  shall  be  determined  by  the  inspectors. 

20.  The  county  court  of  each  county,  where  a  public  inspection  County  court  to 
of  tobacco  is  established,  shall  appoint  two  persons  skilled  in  oF^tobacco^  ^"^^ 
tobacco  to  be  pickers,   who  shall  be  entitled  to  the  compensation 

and  take  the  oaths,  allowed  and  prescribed  by  law  for  pickers  of 
tobacco.  And  each  of  the  said  courts  may  appoint  one  of  the 
pickers  to  act  in  the  room  of  either  of  the  inspectors,  at  any  time 
when  such  inspector  may  be  incapable  of  attending,  who  shall  take 
the  oath  in  manner  prescribed  for  inspectors  ;  and  such  pickers 
may  be  called  on  to  give  a  casting  vote,  should  the  inspectors  dis- 
agree in  the  inspection  of  any  tobacco  ;  and  the  said  pickers, 
when  attending  in  lieu  of  either  of  the  inspectors,  may  receive  the 
allowance  of  said  inspectors,  for  each  hogshead  of  tobacco  he 
shall  inspect  :  Provided,  that  the  picker,  by  whose  voice  any 
tobacco  shall  be  condemned,  shall  not  be  allowed  to  have  the  pick- 
ing thereof,  and  that  when  the  picker  is  so  appointed  by  the  court, 

18.  1787,  c.  265,  s.  2. 

19.  1787,  c.  265,  s.  3. 

20.  17S7,  c.  265,  a.  5. 


^^^  INSPECTIONS.  [Chap.  LIX. 

he  shall  be  invested  with  the  power  of  inspector,  in  case  of  ina- 
bihty  of  either  of  the  inspectors  so  appointed,  until  the  next  county 
court,  or  until  the  inspector  can  be  present :  Provided  nevertheless, 
that  upon  complaint  made  to  any  of  the  said  courts  against  either 
of  the  said  pickers,  the  court,  where  such  complaint  is  lodged,  shall 
and  is  hereby  directed  to  inquire  into  the  nature  of  the  complaint ; 
and  if  it  shall  appear  that  the  picker  or  pickers,  against  whom  such 
complaint  hath  been  lodged,  hath  been  guilty  of  any  misbehavior 
in  the  execution  of  his  duty,  such  court  shall  remove  him  or  them 
from  said  appointment  and  appoint  another  or  others  in  his  or  their 
stead. 

s^ecSTbuy'  ^^-  No  inspector  of  tobacco  shall,  directly  or  indirectly,  buy  or 
tobacco.  receive,  by  way  of  barter,  loan  or  exchange,  any  tobacco  whatso- 

ever (payments   in  tobacco   for  their  own   rents   excepted)  under 
the  penalty  of  forfeiting  his  office. 
County  courts       22.  The  justices  of  any  county  court,  a  majority  being  present, 
^^^te-  "■    ^^y^  ^'  ^^^^  expense  of  their  county,   purchase   or   rent  ground, 
houses,  &c.      build  or  rent  warehouses,  provide   scales  and  weights,  and  other 
matters  incident  to   a  tobacco  inspection,   and  allow  such  salaries 
to  the  inspectors  as  they  shall  judge  proper,  to  be  paid  out  of  the 
money  assessed  for  the   maintenance   and   support  of  the  county 
charges  ;  and  also  shall,    at  any  such  inspection,   order   and  hmit 
the  time  for  the  attendance  of  such  inspectors  at  their  respective 
warehouses. 

S' wrehousT  c  ^^-  '/  ^'!y  warehouse,  at  any  of  the  tobacco  inspections  in  this 
is  burned,  the  otate,  that  IS  Or  shall  be  appointed,  shall  happen  to  be  burned  and 
S?riabtel^°^^^'^°  ^J^,f  i"  destroyed,  where  such  accident  shall  happen  no  in- 
his  notes,  &,c.    spector  shall  be  sued  by  reason  of  any  notes  or  receipts  by  them 

given  for  tobacco  so  burned. 
t^Tgulate"*'*"   .    ^\ '-^^^  justices  in  each  respective  county  in  this  State,  where- 
warehouserent,  m  pubhc   Warehouses  for  tobacco  now  stand  erected,  shall  from 
^-  court  to  court,  as  they  shall  deem  fit  and  proper,  regulate  and  bs- 

certain  what  shall  be  paid  as  warehouse  rent  for  each  hogshead  of 
tobacco,   by  the  owner  or  owners  of  the  same,  which  shall  there- 
after be  brought  to  the  said  warehouse  ;  and  the  said  justices  shall 
and  may  appomt  some  fit  person  to  receive  moneys,  who   shall  be 
accountable  to  them  at  all  times  for  the  appropriation  of  the  same 
by   action   of  debt  before   any   court  having  cognizance  thereof, 
wherem  the  inspector's  books  shall    be  proof  as  to  the  number  of 
hogsheads  received,  for  the  whole  of  which  such  person  shall  be 
liable  to  answer,  and  shall  be  allowed  no  protection. 
SuTesTa^be  .   ^^'.^he  justices,  in  the  respective  counties  as  aforesaid,  shaU, 
repaired  or  re-  i^m  time  to  time  as  occasion  may  require,  lay  out  and  appropriate 
built.  any  of  the  remaining  part  of  the  aforesaid  moneys  in  repairing  or 

rebuildmg   their  respective  warehouses,  in   such  manner  as   they 
may  think  necessary. 


Private  ware 


rrivaie  ware-  ^^      rpi  ',  ,  ,      . 

houses  to  have       ^0-   -«-  he  same  rules  and  regulations  herein  before  contained  shall 


21.  1777,0.  120,  s.  10. 

22.  1777,  c.  120,  s.  6. 

23.  1777,  c.  120,  s.  9. 

24.  1779,  c.  159,  s.  2. 
25-  1779,  c.  159,  s.  3. 
26.  1779,  c.  159,  S.4. 


Chap.  LIX.]  inspections.  337 

be  had  and  taken  with  respect  to  warehouses,  built  by  private  per- the  same  rules 
sons  on  their  own  lands,  and  at  which  a  pubHc  inspection  has  been  ' 

heretofore  held,  so  far  as  respects  the  warehouse  rent  that  shall  be 
paid  for  each  hogshead  of  tobacco. 

27.  No  inspector  of  flour  or  his  deputies  shall,  directly  or  indi- No  inspector  of 
rectly,  vend,   barter,   sell,  exchange   or  trade  in  flour,  bread,    or  o°^4^e^nflour 
other  articles  made  of  flour,  under  the  penalty  of  two  hundred  dol-  or  buy,  except ' 
lars,  to  be  recovered  by  action  of  debt,  by  any  person  who  will  ^""^ '^i^ o"*^"^ ^^®- 
sue  for  the  same  to  efl:ect,  in  any  court  of  record  in  this  State,  the 

one  half  to  the  use  of  the  person  so  suing,  and  the  other  half  to 
be  paid  to  the  treasurer  of  the  State  for  public  use  ;  and  every 
person,  so  oftending  and  thereof  convicted,  shall  be  and  he  is  here- 
by disabled  from  acting  thereafter  in  his  said  office  ;  and  no  in- 
spector of  flour  shall,  directly  or  indirectly,  purchase  any  flour  by 
him  condemned,  or  any  other  flour  whatever,  other  than  for  his 
own  use,  under  the  penalty  of  seven  dollars  for  every  barrel  by  him 
purchased. 

28.  The  several  degrees  of  flour  shall  in  future  be  distinguish-  flour. 
ed  as  follows,  to  wit :  superfine,  fine,  and  cross  middling ;  and  it 
shall  be  the  duty  of  inspectors  of  flour,  at  the  several  places  of  in- 
spection in  this  State,  to  conform  their  inspection,  as  near  as  may 

be,  to  the  inspection  of  flour  observed  and  in  use  in  the  adjacent 
states. 

29.  Each  barrel  of  flour,  exposed  to  sale  in  or  exported  from  ^^.^^  ^°'^''. 

1  •      o  111  111  •  1         1       i         1      •  shall  pass  in- 

tms  fotate,  by  land  or  water,  shall  contam  one  hundred  and  nmety-  spection. 
six  pounds  ;  and  each  half  barrel  ninetyeight  pounds  of  net  flour, 
well  ground,  bolted  and  packed,  merchantable  and  of  due  fineness, 
without  any  mixture  of  coarse  flour  or  flour  of  any  other  grain  than 
wheat ;  and  every  barrel  shall  be  made  of  good  seasoned  wood, 
tightened  with  ten  hoops,  sufficiently  nailed  with  flour  nails  in  each 
chime  hoop,  and  three  nails  in  each  upper  bilge  hoop,  and  the  di- 
mensions shall  be  as  follows,  to  wit  :  the  stave  shall  be  twentyseven 
inches  in  length,  and  the  head  seventeen  and  one  half  inches  in 
diameter  ;  and  the  half  barrel  shall  be  of  the  following  dimensions, 
to  wit :  the  staves  twentythree  inches  in  length,  and  the  head 
twelve  and  one  half  inches  in  diameter  ;  and  every  miller  or  manu- 
facturer of  flour  for  sale  or  exportation  shall  provide  and  keep  a 
distinguishing  mark  or  brand,  containing  the  initials  of  his  christian 
name,  and  his  surname  at  length,  with  which  he  shall  brand  every 
cask  of  flour,  and  mark  thereon  the  net  and  tare  weight,  before 
the  same  shall  be  removed  from  the  place  where  it  was  bolted  ; 
and  every  miller  or  manufacturer  shall  receive  the  sum  of  ten  cents 
for  bolting,  packing  and  nailing  every  barrel  of  flour  bolted,  and 
that  only. 

30.  Every  miller  or  manufacturer  of  flour,  not  complying  with  j^^'^^^y^"^^™''" 
the  provisions  of  the  preceding  section,  shall  be  subject  to  a  pen- turer  or  seller 
alty  of  forty  cents  for  every   cask  of  flour,  not  hooped,   marked  [nl  with"tl!?^ ' 
and  branded  and  nailed   as  aforesaid,  to  be  recovered   from  such  foregoing  pro- 


visions. 


27.  18U,  c.  807,  s.  5.— 1810,  c.  790,  s.  11. 

28.  1813,  c.  852,  s.  3. 

29.  1791,  c.  345,  s.  1  and  2.— 1807,  c.  728,  s.  1.— 1810,  c.  790,  s.  4,  6  and  6. 

30.  1791,  c.  345,  s.  2.— 1807,  C.  728,  s.  1.— 1810,  c.  790,  s.  5  and  6. 

VOL.  I.  43 


3^6  INSPECTIONS.  [Chap.  LIX. 

miller,  who  shall  neglect  to  comply  with  the  directions  of  this  act, 
or  from  the  person  who  shall  bring  such  flour  to  any  of  the  places 
aforesaid  for  sale  ;  and  in  case  said  penalty  should  be  recovered 
from  the  person  bringing  such  flour  for  sale,  such  person  shall  and 
may  recover  the  same  from  the  miller  or  bolter,  from  whom  he 
purchased  or  received  the  same  :  Provided,  it  appears  that  he  gave 
notice  to  said  miller  or  bolter  that  he  intended  to  carry  the  same 
to  one  of  the  places  aforesaid  for  sale  or  exportation,  and  that  he 
requested  said  miller  or  bolter  to  secure  and  brand  said  barrels. 
And  every  miller  or  manufacturer,  putting  into  any  cask  a  less 
quantity  than  herein  directed,  shall  forfeit  and  pay  for  the  defi- 
ciency of  each  pound  the  sum  of  ten  cents. 
Inspectors  31.  The  inspector,  upon  suspicion  or  at  the  request  of  the  pur- 

cases/unpack'^  chaser,  shall  and  he  is  hereby  required  to  unpack  any  cask  of  flour ; 
the  barrels  of    and  if  there  shall  be  a  less  quantity  than  above  directed,  the  mil- 
ler, bolter  or  seller  shall  pay  the  charges  of  unpacking  and  repack- 
ing,  over  and   above  the  penalties  aforesaid,   but  otherwise  the 
^  charges  shall  be  paid  by   the  inspector  or  by  the  purchaser  if  the 

trial  be  made  at  his  request. 
Persons  selling  32.  When  a  person  shall  sell  any  barrel  or  barrels  of  flour,  not 
not  containing  Containing  the  full  quantity  by  law  required,  the  purchaser,  unless 
the  requisite  there  shall  be  a  special  contract  to  the  contrary,  shall  be  allowed 
Sable Voi-  t°he^  to  recover  the  value  of  the  deficiency  in  an  action  on  the  case  for 
deficiency.        money  had  and  received,  before  any  jurisdiction  having  cognizance 

of  the  same. 
Flow  casks  of       ^^^  Every  inspector  of  flour  shall  inspect  and  try  each  cask, 
flour  to  be  in-    brought  to  him  to  be  inspected,   by  boring  through  the  cask  from 
specte  .  ^j^g  head,  with  an  instrument  not  exceeding  half  an  inch  in  diame- 

ter and  equal  in  length  with  a  barrel  of  flour,  to  be  by  him  provid- 
ed for  the  purpose  ;  and  if  he  shall  judge  that  the  same  is  well 
packed  and  merchantable  according  to  the  directions  of  this  act, 
he  shall  plug  up  the  hole  and  brand  the  cask  in  the  quarter,  with 
the  name  of  the  place  in  which  he  is  inspector,  with  a  public 
brand  to  be  by  him  provided  for  that  purpose  ;  and  shall  also 
brand  and  mark  the  degree  of  fineness,  which  he  on  inspection 
shall  determine  the  same  to  be  of,  which  degree  shall  be  distin- 
guished as  follows,  to  wit :  superfine,  fine  and  cross  middling. 
For  which  trouble  the  inspector  shall  have  and  receive  from  the 
owner  of  such  flour  the  sum  of  five  cents  for  every  barrel  by  him 
thus  inspected.  And  no  inspector  shall  pass  any  flour,  which 
shall  prove  on  examination  to  be  unmerchantable,  agreeably  to  the 
true  intent  and  meaning  of  this  act,  but  shall  cause  the  same  to  be 
marked  on  the  bilge  condemned,  or  secure  it  for  further  examina- 
tion if  required  ;  and  the  inspector  shall  and  may  demand  and  re- 
ceive from  the  owners  thereof  the  same  rate  and  prices,  as  if  the 
same  had  been  passed  ;  and  every  inspector  as  aforesaid  shall,  if 
required,  give  the  owner  of  the  flour,  so  inspected  and  branded,  a 
certificate  of  the  same,  and  shall  keep  a  record  or  book  of  inspec- 
tion of  all   flour,   so  inspected  and  branded  as  aforesaid,  setting 

31.  1810,  C.  790,  S.  7. 

32.  1807,  c.  723,  s.  2. 

33.  1791,  c  345,  s.  3.— 1810,  c.  790,  s.  8.— 1813,  c.  852,  s.  3. 


Chap.  LIX.]  inspections.  339 

forth  the  owner  of  tlie  floiir  and  miller's  name  with  the  quality  of 
each  cask. 

34.  Whenever  any  person  may  think  himself  aggrieved  by  the  owner  offlour 
improper  decision  of  any  inspector  of  flour  within  this  State,  it  dissatisfied 
shall  be  lawful  for  the  owner  thereof,  or  his  agent,  to  secure  it  for  spection,  how 
further  examination,  which  examination  he  shall  cause  to  be  made  to  obtain  a  re- 
within  sixty  days  thereof,  by  applying  to  a  justice,  whose  duty  it 

shall  be  to  issue  a  warrant  directed  to  three  indifferent  persons^ 
well  skilled  in  the  manufacture  of  flour,  one  of  whom  shall  be 
named  by  the  owner  or  possessor  of  the  flour,  one  by  the  inspec- 
tor, and  the  third  by  the  magistrate  ;  which  said  three  persons, 
having  first  taken  the  oath  or  affirmation  directed  to  be  taken  by 
the  inspectors,  shall  proceed  carefully  to  view  and  examine  said 
flour  ;  and  if  they,  or  any  two  of  them,  shall  differ  from  the  in- 
spector as  to  the  quality  of  said  flour,  it  shall  be  the  duty  of  the 
inspector  to  brand  and  mark  the  same  according  to  their  judgment, 
and  he  moreover  shall  pay  all  costs  attending  the  said  examination  ;, 
but  if  they  shall  be  of  opinion  that  the  judgment  of  the  inspectors 
is  correct,  the  owner  or  possessor  of  said  flour  shall  pay  costs. 

35.  It  shall  not  be  lawful  for   any  person  to  export  or  lade  on  ^®^^^^*y  jo""  ^^' 

,  ^       c.  ,-  ir  •'^.  c     ^  •      a  porting  flour 

board  oi  any  ship  or  vessel  lor  exportation  out  oi  this  fetate,  any  not  passed  by 
barrel  of  flour  marked  "  condemned  "  by  an  inspector,  or  to  export,  "^*P^'^^°''- 
or  lade  on  board  any  ship  or  vessel  for  exportation  out  of  this. 
State,  any  casks  or  barrels  of  flour  not  inspected  or  branded  as 
aforesaid,  on  pain  of  forfeiting  ten  dollars  for  every  cask  or  barrel 
of  flour  exported  or  put  on  board  of  any  ship  or  vessel  for  expor- 
tation. 

36.  If  any  master,  owner  or  commander  of  any  ship,  vessel,  Penalty  on 
boat  or  craft  shall  receive  any  barrel  or  barrels  of  flour  on  board  ^ceivin<^  on  °"^ 
his  ship,  vessel,  boat  or  craft  for  exportation,  or  transportation  board  his  ship 
from  one  town  or  port,  being   a  place  of  inspection,  to  another,  ^0^'^-^''^*^  ^ 
which  is  not  inspected  and  branded  as  herein  directed,  he  shall  for- 
feit and  pay  the  sum  of  five  dollars  for  each  and  every  cask  so  re- 
ceived, recoverable  in  an  action  of  debt  before   any  jurisdiction 

having  cognizance  thereof,  to  the  use  of  the  person  suing  for  the 
same  :  Provided^  that  the  provisions  of  this  section  shall  not  ex-  Proviso, 
tend  or  be  applied  to  boats  or  crafts  plying  between  Fayetteville 
and  Wilmington. 

37.  Any  cask  of  flour,  which  has  been  inspected  and  branded  at  Cask  of  flour 

/  ™  .  .'        .       ,  .       c  /  ,,  ,  ,  .  once  inspected, 

any  one  place  oi  inspection  in  this    btate,   shall  not  be  subject  to  not  liable  to  be 
re-examination  and  inspection  in  another,  unless,  after  such  inspec-  r?inspected  m 

\  .  ■*-,     .    Sixty  days. 

tion,  it  shall  have  remained  for  the  space  of  sixty  days  before  it  is 
exported,  and  in  all  cases  the  certificate  of  the  inspector  shall  be 
conclusive  evidence  of  the  time  when  the  flour  was  inspected. 

38.  No  inspector  of  flour  shall  condemn  any  flour  cask  for  "Ot  Cask^noMo^be 
being  precisely  of  the  dimensions  required  by  this  act  :   Provided,  short  nieasure 
such  cask  shall  come  within  one  half  inch  of  the  length  of  the  stave,  J"  ^^ 'i!onta'iif  ^*' 

196  pounds. 

34.  1811,  c.  807,  s.  I. 

35.  1810,  c.  790,  s.  8. 

36.  1811,  c.  807,  s.  3  —1813,  c.  852,  s.  2. 

37.  1811,  c.  807,  s.  4. 

33.  1828,  c.  84,  s.  2,  amended. 


340  INSPECTIONS.  [Chap.  LIX. 

and  one  half  Inch  in  the  diameter  of  the  head  of  the  measurement 
required,  and  shall  contain   one  hundred  and  ninetysix  pounds  of 
flour. 
Penalty  for  39.   If  any  person  shall  pack  flour  or  meal  of  any  kind  what- 

packing  flour  in  gyer  in  a  cask,  which  has  been  inspected   and  branded  with  the 
'  name  of  a  miller,   such  person   shall  forfeit  and  pay  the   sum  of 
twenty  dollars  for  every  barrel  so  packed  for  sale,  to  be  recovered 
before  any  justice  of  the  peace,  one  half  to  the  use  of  the  informer, 
the  other  half  to  the  use  of  the  miller,   who  has  been  injured  by 
such  false  packing,  and  be  further  liable  to  the  action  of  the  party 
aggrieved. 
Penalty  for  al-       40.   If  any  person  shall  alter  the  mark  branded  on  any  cask  of 
WslranF&c.  ^om  by  an  inspector,  or  shall  mark  or  brand  any  cask  of  flour 
which  has  not  been  inspected,  with  any  mark  or  brand  similar  to,  or 
in  imitation  of  any  inspector's  marker  brand,  or  after  an  inspector 
shall  have  passed  any  cask  of  flour  as  merchantable,  shall  pack  into 
said  cask  any  other  flour,  or  after  any  cask  of  flour  shall  be  brand- 
ed "  condemned,^''  shall  unpack  and  repack  the  same  in  other  casks 
for  exportation,  such  person  shall  forfeit  and  pay  the  sum  of  seven 
dollars  for  every  cask. 
Penalty  on  iu-       41.   Every  inspector  of  flour,  failing  to  perform  the  duties  and 
flour  for  neg-    requisites  herein  mentioned,   shall  forfeit  and  pay  the  sum  of  ten 
lect  of  duty,     fjollars  for  every  oftence  by  him  so  committed,  to  be  recovered 
by  action  of  debt,  before  any  jurisdiction  having  cognizance  of  the 
same,  by  any  person  complaining  or  informing  thereof. 
^^XA*'  "\if  ^®        42.   It  shall  and  may  be  lawful  for  any  person  to  sell  flour  in  the 
town  of  Fay-    town  of  Fayetteville,  either  in  casks  or  otherwise,  without  submit- 
etteyille  with-   jjj^g  ^]^g  same  to  inspection. 

Duty  ofinspec-  ^3.  Every  inspector  of  beef,  pork,  rice,  flaxseed,  fish,  tar, 
tors  of  beeff  pitch  and  turpentine,  shall  constantly  attend  at  the  places  for  which 
allies  for^mls-  ^^  ^^^^  ^^  '^^J  ^®  appointed,  and  shall  provide  an  iron  to  brand 
conduct.  any  of  the  said  commodities,  bearing  the  name  of  the  inspector 

and  his  place  of  residence,  and  shall  find  laborers  equally  with  the 
owners  to  assist  in  weighing  the  several  commodities  he  shall 
inspect  and  weigh  ;  and  also  shall  find  and  provide  proper  steel- 
yards or  scales  of  the  lawful  standard  for  that  purpose  ;  and  if  any 
inspector  shall  neglect  his  duty,  or  brand  or  stamp  any  of  the  com- 
modities contrary  to  this  act,  or  brand  any  empty  barrels,  or  lend 
his  brand  to  any  person  or  persons  whatsoever,  he  shall  forfeit  and 
pay  for  every  barrel  or  cask  of  beef,  pork,  or  rice,  fish,  flour  or 
flaxseed,  twenty  dollars,  and  for  every  barrel  of  tar,  pitch  or  tur- 
pentine, two  dollars,  and  for  branding  any  empty  barrel,  or  lending 
his  brand,  two  hundred  dollars,  to  be  recovered  with  costs  by 
action  of  debt,  by  and  for  the  use  of  any  person  who  shall  sue  for 
the  same,  before  any  jurisdiction  having  cognizance  thereof ;  and 
every  other  person  or  persons  that  shall  by  any  ways  or  means 
brand,  or  procure  to   be  branded,  any  cask  or  barrel  as  aforesaid, 

39.  1810,  C.  790,  S.  9. 

40.  1810,  c.  790,  s.  12.— 1791,  C.  345,  s.  4. 

41.  1791,  c.  345,  s.  5. 

42.  1S35,  C.  91. 

43.  1784,  C.  206,  S.  7. 


Chap.  LIX.]  inspections.  341 

than  by  the  inspector  or  by  his  assistant,  he  or  they  so  offending 
shall  forfeit  and  pay  for  every  such  offence  the  same  fines  and  pen- 
alties, as  inspectors  are  by  this  section  liable  to  pay  for  breach  of 
duty  or  misbehavior. 

44.  All  beef  or  pork,  packed  within  this   State  for  sale   or  ex- How  beef  and 
portation,  shall  be  put    in   eood  and  sufficient   new,  white   oak,  P*"^^  ®^^i^  ^^ 
turkey  or  water  oak  casks,   which  shall  not   contain  more  than 
twentyeight  gallons,  wine  measure,  each  barrel,  and  fifteen  gallons 

each  half  barrel,  and  all  barrels  and  half  barrels  shall  be  made  of 
timber,  seasoned  at  least  six  months  after  the  riving,  the  staves  not 
less  than  half  an  inch  thick  when  wrought,  the  head  not  less  than 
three  quarters  of  an  inch  thick,  and  well  dowelled,  twelve  good 
substantial  hoops  on  each  cask,  and  the  whole  to  be  tight,  fit  to 
hold  pickle  and  made  in  a  workmanlike  manner  ;  and  each  barrel 
shall  contain  at  least  two  hundred  pounds  of  good,  sound  and  clean 
merchantable  meat,  well  salted  and  cured,  with  at  least  half  a 
bushel  of  salt  to  each  barrel,  and  nailed  and  packed,  and  no  more 
than  two  heads  in  one  barrel,  and  not  any  boar's  flesh  in  any  barrel 
of  pork,  or  any  heads  or  bull's  flesh  or  more  than  two  shins  in  any 
barrel  of  beef ;  and  each  half  barrel  shall  contain  one  hundred 
pounds  of  salted  meat,  and  if  beef  not  more  than  one  shin,  and  if 
pork  not  more  than  one  head. 

45.  It  shall  be  lawful   for  the  inspectors  to   inspect  all  hog's  Hog's  lard  to  be 
lard,    which   shah  be  exported  in   casks,   respecting  the   quality  ^"^^^^^'^  ' 
thereof,  for  which  the  inspectors  shall  be  entitled  to  fees,  similar 

to  those  allowed  in  pork,  respect  being  had  to  the  size  of  the  cask, 
and  the  article  of  hog's  fat  or  lard  shall  not  hereafter  be  exported, 
unless  in  cypress  or  juniper  casks,  and  inspected,  under  the  pains 
and  penalties  inflicted  by  law  for  exporting  uninspected  pork,  beef 
or  any  other  commodities  liable  by  law  to  be  inspected. 

46.  Every  cask  of  rice,  intended  for  sale  or  exportation,  shall  Rice,  how  in- 
be  filled  with  sound  and  weh  cleaned  rice,  and  after  the  same  has  spected. 
been  inspected  and  found  good  and  merchantable,  every  such  cask 

shall  be  by  him  branded  as  aforesaid,  and  a  certificate  thereof 
given  to  the  owner,  bearing  date,  in  words  at  length,  the  same  day 
such  commodity  was  inspected  and  passed. 

47.  All  fish,  to  be  exported  from  this  State,  shall  be  packed  in  Fish,  how  in- 
good  and  sufficient  barrels,  and  shall  be  inspected  by  an  inspector  ^P"^*^'®^- 

of  the  county,  where  the  same  may  be  saved,  at  the  time  of  ship- 
ping the  same  ;  each  barrel  shall  be  of  the  following  dimensions, 
to  wit  :  at  least  twentynine  inches  in  length,  and  the  head  at  least 
seventeen  inches  in  diameter,  and  shall  contain  thirty  gallons,  and 
be  made  in  a  workmanlike  manner,  and  full  of  good  sound  fish, 
with  a  sufficient  quantity  of  salt,  and  when  the  barrels  of  fish  shall 
be  of  this  description,  they  shall  be  deemed  merchantable  on  the 
inspector's  marking,  branding,  &c.  ;  otherwise  it  shall  not  be  law- 
ful to  export  any  fish  from  this  Slate.  And  if  any  person  or  per- 
sons shall  sell  or  offer  to  sell,  within  this  State,  any  fish,  in  barrels 

44.  1784,  c.  206,  s-  8.-1784,  c.  221,  s.  5.— 1791,  c.  349,  s.  1. 

45.  1784,  c.  221,  s.  5. 

46.  1784,  c.  206,  S.  8. 

47.  1784,  C.  205,  »v  9.— 1734,  c.  221,  s.  3 — 1796,  c.  462,  s.  2.— 1B31,  C.  16. 


342  INSPECTIONS.  [Chap.  LIX. 

less  than  the  size  by  this  section  prescribed,  he  or  they  shall 
forfeit  and  pay  the  sum  of  two  dollars  for  each  barrel  they  may 
sell  or  offer  to  sell,  to  be  recovered  by  warrant  before  any  justice 
of  the  peace  in  the  county  where  the  offence  is  committed,  to  be 
apphed  to  the  use  of  the  prosecutor. 
Pitch  and  tor-       43  _  Eyerv  barrel  of  pitch  or  turpentine  shall  contain  thirtytwo 

pentme,  howm-      „  i  1       r         r  r        1    1  •  1  •  11 

spected.  gallons,  and  be  free  from  any  fraudulent  mixture,  and  m  good  and 

sufficient  casks,  made  of  good  and  seasoned  staves,  at  least  three 
quarters  of  an  inch  thick  at  the  chime  or  crose,  and  of  proportional 
thickness  in  the  bilge,  and  not  exceeding  five  inches  in  breadth, 
and  each  barrel  to  be  well  secured  with  twelve  good  hoops,  and 
the  joint  of  the  head  placed  perpendicularly  to  the  bung  ;  and  if 
pitch  or  turpentine  shall  be  found  by  the  inspector  to  be  fraudu- 
lently mixed,  the   same  shall  be  condemned  and   delivered  by  the 

Tar,  how  in-    inspector  to  the  owner  or  seller  on   demand  ;  and  every  barrel  of 

specie  .  ^^^,  gj^^jj  ^^  ^j^g  gauge  of  thirtytwo  gallons  wine  measure,  and  every 

barrel  of  less  size  or  in  bad  casks,  not  being  twothirds  bound  with 
hoops,  shall  be  put  in  merchantable  order  at  the  expense  of  the 
owner,  and  every  barrel  of  tar,  pitch  and  turpentine  after  the  same 
shall  be  inspected,  gauged,  found  clean,  well  filled,  and  in  mer- 
chantable order,  shall  be  by  him  branded.  And  forasmuch  as  it 
is  difficult  in  warm  and  rainy  weather  to  separate  tar  from  water  : 
It  is  hereby  declared,  That  water  shall  not  be  accounted  a  fraudu- 
lent mixture  in  any  tar,  but  that  in  such  case  the  barrel  shall  not  be 
branded  by  the  inspector,  until  the  same  is  as  free  from  water  as  it 
can  be  made. 

Inspectors  to        49.   The  inspectors  shall  make  a  difference  with  respect  to  hard 

make  a  dii-  i        r  •  it-  1  •  1      •  ■  i 

ftrence  be-       and  soit  turpentine,    and  dippings   and  scrapings,   designating  the 
tween  hard  and  character  of  each  barrel,  and  the  soft  shall  be  branded  with  the 
dippings  and   'letter  S,  and  the  hard  with  the  letter  H  :  Provided,   it  is  clean 
scrapings.        from  any  fraudulent  mixture,  so  as  to  render  it  unmerchantable  ; 
and  each  barrel  so  inspected  and  branded  shall  be  held  and  con- 
sidered as  good  clean  turpentine.      And  if  any  inspector  shall  give 
any  bill   contrary  to  the  directions  of  this   section,  he  shall  forfeit 
the  sum  of  one  hundred  dollars,  one  half  to  the  informant,  and  the 
other  to  the  party  aggrieved. 
Makers  of  tar,       50.   Every  maker    of  tar,    pitch  or  turpentine,  shall  mai'k  or 
pentine'^to'^"'^    brand  every  such  barrel  with  the  initial  letters  of  his  or  her  name, 
brand  their  bar- not  less  than  one   inch  long,   under  the  penalty  of  ten   cents  for 
initialsV\heir  svery  barrel  that  may  not  be  so  branded,  and  every  person  so  fail- 
names,  ing  or  neglecting  shall  also   pay  one  half  cent  per  barrel  to  the 
inspector    for    marking   the    same    with  the  initial  letters   of  the 
Inspectors  to    maker's  name,   which  fee  shall  be  paid  by  the  person  paying  the 
entering  the      fees  of  inspection,  and  by  him  may  be  charged  to  the  makers  :  and 
makers' names,  gyg^y  inspector  shall  keep  a  book,  in  which  shall  be  fairly  entered' 
the  maker's  name,  and  the  mark   of  every  barrel  of  beef,  pork, 
rice,  tar,  pitch  and  turpentine,  flour,  fish  and  butter,  and  the  num- 
ber of  barrels  inspected  of  the  same  mark,  the  merchant  or  ship- 

43.  1784,  c.  206,  s.  10.— 1784,  c  221,  s.  1  and  2.— 1823,  c.  1215,  s.  1  aiid2. 

49.  1821,  c.  1081.— 1533,  c.  172. 

50.  1784,  c.  206,  s.  11. 


Chap.  LIX.]  inspections.  343 

per's  name  causing  the  same  to  be  inspected,  and  the  time  of 
inspection  ;  and  shall  give  a  certificate  of  any  parcel  to  any  person 
requiring  the  same,  on  payment  of  ten  cents. 

51.  No  beef,  pork,  rice,  fish,  flour  or  butter,  shall  be  shipped  Beef,  &c.  to  be 
on  board  any  ship  or  vessel  for  exportation,  after  the  expiration  of  noTex^orTV^" 
sixty  days  from  the   time   the  same  was  inspected,   nor  any  tar,  sixty  days. 
pitch  or  turpentine,  after  the  expiration  of  twenty  days,  until  the  ^^p'gP^j^^  "'^ 
same  shall  have  been  again  inspected,  and  certificate  or  certificates  twenty  days. 
granted  in  the  same  manner,  as   if  such   commodities  had  never 

been  inspected,  and  every  person  offending  herein  shall  forfeit  one 
thousand  dollars  ;  and  the  master  or  commander  of  such  ship  or 
vessel  shall  be  liable  to  the  same  penalty,  as  for  taking  on  board 
any  of  the  said  commodities  without  being  branded. 

52.  No  cooper,  or  any  other  person  whatsoever  making  casks.  No  cooper,  &c. 
shall  expose  for  sale  any  barrel  or  half  barrel,  for  the  holding  of  }-°i."sa^  but ac- 
pork  or  beef,  other  than  such  as  are  by  this  act  directed  to  be  cm-ding  to  the 
made  for  that  use,   under  the   penalty  of  two  dollars,  and  every  ^i^-s^act?^  ° 
cooper  or  other  person  making  barrels  or  half  barrels,  before  they 

expose  the  same  for  sale,  shall  set  his  or  her  proper  brand  upon 
the  same,  which  brand  shall  be  recorded  in  the  office  of  the  clerk 
of  the  county  court,  where  he  or  they  shall  reside,  under  the  pen- 
alty of  twenty  dollars  for  each  and  every  neglect,  and  every  bar- 
rel of  tar,  pitch  and  turpentine  shall  be  branded,  in  the  manner 
aforesaid,  by  the  maker  thereof  under  the  penalty  of  fifty  cents. 

53.  Every  seller  or  exporter  of  beef,  pork,  rice,  tar,  pitch  and  ^^l'^'^  °^  t^^- 
turpentine,  fish,  flour,  butter  and  flaxseed,  shall  produce  the  cer-  &c.  to  produce 
tificate  of  the  inspector,  who   inspected  the   same,  and  make  oath  ^^^  inspector's 

^  .  .^^  •       1      1     r  •        •  CI  1      certilicate,  &c. 

or  amrmation,  it  required,  betore  a  justice  oi  the  peace,  on  the 
delivery  of  the  goods,  sold  or  exported,  that  the  several  commodi- 
ties by  him  to  be  sold  or  exported,  are  the  same  that  were  inspect- 
ed and  passed,  and  do  contain  the  full  quantity  mentioned  in  such 
certificate,  without  embezzlement  to  his  knowledge,  which  oath  or 
affirmation  the  justice  shall  and  he  is  hereby  required  to  certify  on 
the  back  of  the  certificate,  which  certificate  the  seller  shall  deliver 
to  the  buyer  of  such  commodities  sold,  and  the  person  exporting 
such  commodities  shall  deliver  such  certificate  to  the  master  of 
the  ship  or  vessel,  on  board  which  the  same  shall  be  shipped,  and 
if  such  seller  or  exporter  shall  refuse  to  make  oath  or  affirmation, 
he  shall  for  every  such  ofience  forfeit  and  pay  the  sum  of  two  hun- 
dred dollars. 

54.  No   master   or  commander   of  any   vessel  or  vessels  shall  jj^'jjg^p'i.^°"yg^_ 
take  on  board  his  ship  or  vessel  any  such  cask  or  ban  el  or  other  seis  for  re- 
inspectable  commodity  as   aforesaid,  without  being  inspected  and  J^pl^Ydlnv  such 
branded  as  by  this  act  is   required,  under  the  penalty  of  two  bun-  articles  unin- 
dred  dollars  for  each  offence,  one  half  to  the  informer,  the  other  *P^^^"  • 

half  to  the  wardens  of  the  county  wherein  the  offence  shall  be  com- 
mitted to  the  use  of  the  poor  of  the  said  county,  to  be  recovered 

51.  1784,0.  206,  s.  12. 

52.  1784,  c  206,  s.  15. 

53.  1784,  c.  206,  s    16. 

54.  17S4,  c.  206,  s.   6. 


344  INSPECTIONS.  [Chap.  LIX. 

with  costs,  by  action  of  debt  in  any  court  of  record  having  cogni- 
zance thereof. 
Staves,  heading  ^^-  -^^^  Staves  and  heading,  which  shall  be  sold  or  shipped  for 
and  shingles,  exportation,  shall  be  of  the  following  dimensions,  otherwise  not 
ow  inspec  e  .  j^Qgrchantable,  to  wit  :  butt  staves  shall  be  five  feet  nine  inches 
long,  four  inches  broad  and  an  inch  thick  on  the  heart  or  thin 
edge,  and  clear  of  sap  ;  pipe  staves,  four  feet  eight  inches  long, 
four  inches  broad,  and  three  quarters  of  an  inch  thick  on  the  heart 
or  thin  edge,  and  clear  of  sap  ;  white  oak  hogshead  staves  shall  be 
three  feet  six  inches  long,  three  inches  wide  when  dressed,  clear 
of  sap,  and  not  less  than  three  fourths  of  an  inch  thick  in  any 
place  ;  rough  white  oak  hogshead  staves,  shall  be  three  feet  six 
inches  long,  three  and  a  half  inches  wide,  clear  of  sap  and  three 
fourths  of  an  inch  thick  on  the  thin  edge  ;  red  oak  hogshead  staves 
shall  be  three  feet  long,  three  and  a  half  inches  wide  including  sap, 
and  three  fourths  of  an  inch  thick  on  the  thin  edge  ;  barrel  staves 
shall  be  two  feet  eight  and  a  half  inches  long,  three  inches  wide, 
clear  of  sap  and  three  fourths  of  an  inch  thick  on  the  edge  ;  white 
oak  hogshead  heading  shall  be  thirtytwo  inches  long,  six  inches 
broad  and  one  inch  thick  on  the  heart  or  thin  edge,  and  clear  of 
sap  ;  barrel  heading  shall  be  nineteen  inches  long,  six  inches 
broad,  and  three  quarters  of  an  inch  thick  on  the  heart  or  the  thin 
edge,  and  clear  of  sap  ;  shingles  shall  not  be  less  than  eighteen 
inches  long,  four  inches  broad,  and  five  eighths  of  an  inch  thick  ; 
all  such  staves  and  shingles  to  be  made  of  good  sound  timber  : 
should  they  be  larger  than  the  dimensions  here  mentioned  they 
shall  not  for  that  reason,  be  considered  unmerchantable. 
Lumber,  how  56.  No  boards  or  plank  shall  be  deemed  merchantable  or  passed 
inspecte  .  ^^  ^^^^  inspector,  that  are  not  free  from  any  spht,  not  less  than 
twelve  inches  long,  have  no  edge  less  than  half  an  inch  thick,  and 
as  near  as  may  be  of  an  equal  thickness  at  each  end  ;  and  every 
board,  plank,  piece  of  scaniling  or  other  square  timber,  being 
marked  with  the  number  of  more  superficial  feet  than  are  contained 
therein,  shall  be  forfeited  to  the  wardens  of  the  county  for  the  use 
of  the  poor  thereof :  Provided  nevertheless,  that  no  staves  or  head- 
ing, shingles,  boards,  plank,  or  scantling,  shall  be  inspected  unless 
required  by  the  purchaser. 
Saw  mill  lum-  57.  The  inspection  of  saw  mill  lumber,  on  the  Cape  Fear  river, 
CapeFear  how ^"^  ^^  ^^^  Several  ports  belonging  to  the  same,  shall  hereafter  be 
inspected.  governed  by  the  following  rules,  to  wit  :  All  well  sawed,  sound 
boards  arid  plank  with  square  edges,  and  one  half  heart  on  the  sap 
side,  shall  be  merchantable  ;  also  all  well  sawed  boards  and  plank, 
with  square  edges  one  half  heart  on  the  sap  side,  made  of  sound 
timber  and  clear  of  splits  and  wind  shakes  for  three  fourths  of  their 
lengths,  shall  be  merchantable,  deducting  therefrom  one  half  their 
fractured  part ;  all  well  sawed  sound  scanthng,  with  square  edges, 
shall  be  merchantable,  and  also  all  well  sawed  sound  scantling  with 
square  edges,  two  thirds  of  their  lengths,  and   the  bark  no  more 

55.  1784,  c.  206,  s.  13  and  14.— 1322,  c.  1157.— 1826,  c.  33. 

56.  1784,  c,  206,  s.  14. 

57.  1824,  c.  1254,  s.  1  and  2. 


Chap.  LIX.]  inspections.  345 

than  one  inch  wide,  shall  be  merchantable  ;  and  all  saw  mill  lum- 
ber, not  being  of  the  description  aforenamed,  shall  be  deemed 
refuse  ;  any  inspector  or  inspectors,  who  shall  at  any  time  here- 
after inspect  saw  mill  lumber  by  any  rule  or  rules  different  from 
those  prescribed  by  this  section,  shall  forfeit  and  pay  the  sum  of 
one  hundred  dollars  for  each  and  every  such  offence,  one  half  to 
the  informer,  or  person  suing  for  the  same  and  the  other  half  to 
the  use  of  the  county  where  such  forfeiture  shall  be  incurred. 

58.  All  steam  mill  lumber,  showing    heart  one  half  the  length,  Steam  mill 
shall  be  merchantable,  and  no  inspector,  having  a  stated  salary  from  gpe^ted.  °^^'^" 
the  proprietors  of  the  steam  mills,  shall  inspect  any  timber  brought 

to  said  mills,  unless  by  consent  of  the  seller,  under  the  penalty  of 
fifty  dollars,  one  half  to  the  informer  and  the  other  half  to  the  use 
of  the  county. 

59.  The  fees  of  inspectors  shall  in  all  instances  be  paid  by  the  inspector's  fees, 
purchaser  or  exporter  of  the  articles  inspected.  paid.  °^  °   ^ 

60.  All  staves  and  heading,  shingles,  boards,  plank  and  scantling,  staves,  head- 
hereafter  inspected,  shall  be  culled,  and  the  refuse  separated  from  '"|,'  ^^-  ^°  ^^ 
the  merchantable,  except  there  be  an  agreement  between  the  pur- 
chaser and  seller,  that  the  same  shall  not  be  done. 

61 .  The  purchaser  or  purchasers  of  staves  or  heading,  sold  and  Purchaser  of 
inspected  on  the  Cape  Fear  river,  shall  pay  to  the   seller  of  such  jnt^on  the  ^^  ' 
staves  or  heading  one  half  the  price  for  the  refuse,  which  may    be  Cape  Fear,  to 
stipulated  to  be  paid  for  the  merchantable  part  of  such  staves  or  prrce^for  the 
heading.  refuse. 

62.  No  inspector  shall  by  himself  or  others  purchase  any  cullings  No  inspector 
or  other  articles  that  do  not  pass  inspection,  upon  pain    of  forfeit-  cuf]in|s,'^&c.^^ 
ing  one  hundred  dollars. 

63.  Should  any  person,  who  is   not  a  legal  or  sworn  inspector  Penalty  for  any 
of  lumber,  staves  and  heading,  presume  to  act  as  such  or  as  coun-  ^c^or^of^  '"^' 
ter  thereof,  such  person  shall  be  deemed  guilty  of  a  misdemeanor,  staves,  &c.  act- 
and,  on  legal  conviction  thereof  before  any  competent  jurisdiction,  ^"sas  such, 
shall  be  fined  the  sum  of  one  hundred  dollars,  one  half  to  the  use 

of  the  county,  where  such  offence  may  be  committed,  and  the 
other  half  to  the  use  of  the  informer. 

64.  The  several  fines  and  forfeitures   by  this  act  inflicted,  for  Ji°^^  ^"^^  ^"^ 
which  no  method  of  recovery  or  application  is  herein  before  direct-  under  this  act 
ed,  shall  and  may  be  recovered  with   costs,  by  action   of  debt,  '°^^  recovered 
before  any  jurisdiction  having  cognizance  thereof,  one  half  to  the 

use  of  the  prosecutor,  and  the  other  half  to  the  county,  wherein 
such  penalty  shall  be  incurred,  to  be  applied  by  the  justices  of  the 
county  court,  towards  the  lessening  of  the  county  tax. 

65.  In  case  the  purchaser  and  seller  cannot  agree  as  to  the  Disputes  about 
amount  to  be  allowed  for  extra  cooperage,  and  defective  barrels,  f^theTown'^oF 
it  shall  be  the  duty  of  the  inspector  of  naval  stores  and  provisions  Wilmington, 

■^  ^  how  to  be  de- 

termined. 

58.  1828,  c.  26. 

59.  1791,  c.  345,  s.  6. 

60.  1830,  c.  32.— 1324,  c.  1254,  s.  4. 

61.  Amendment. 

62.  1784.  C.206,  s.  19. 

63.  1824,  c.  1254,  s.  3  amended. 

64.  1764,  c.  206,  s.  13. 

65.  1829,  c.  50. 

VOL.  I.  44 


346 


INTERNAL    IMPROVEMENTS.         [ChAP.  LX. 


Regulations  as 
to  the  sale  of 
fire  wood  in 
towns. 


Penalty  on  in- 
spectors for 
taking  greater 
fees  than  the 
law  allows. 


in  the  town  of  Wilmington,  at  the  instance  of  either  the  purchaser 
or  seller,  to  establish  the  amount  to  be  allowed  for  extra  cooperage 
and  defective  barrels,  and  such  estimate  shall  be  conclusive  ;  and 
it  shall  not  be  lawful  for  any  other  person  to  estimate  the  same,  but 
by  the  consent  of  the  purchaser  and  seller  ;  and  should  any  per- 
son, contrary  to  the  provisions  of  this  act,  estimate  the  same,  he 
shall  forfeit  and  pay  the  sum  of  ten  dollars,  to  be  recovered  by 
warrant  before  any  justice  of  the  peace  for  the  county  of  New 
Hanover  by  any  person  suing  for  the  same. 

66.  All  fire  wood,  sold  in  the  incorporated  towns  of  this  State, 
shall  be  sold  by  the  cord  and  not  otherwise  ;  and  each  cord  shall 
contain  eight  feet  in  length,  four  feet  in  height,  and  four  feet  in 
breadth,  and  shall  be  corded  by  the  cutter  or  seller  under  the  pen- 
alty of  two  dollars,  for  each  offence,  to  be  recovered  against  the 
owner  or  seller  to  the  use  of  the  informer. 

67.  If  any  of  the  inspectors,  at  any  of  the  several  inspections 
of  this  State,  shall  take  and  receive  any  greater  fees  than  are  by 
law  allowed,  he  so  offending  shall  forfeit  and  pay  the  sum  of  ten 
dollars  for  each  and  every  offence,  to  be  recovered  by  any  person 
suing  for  the  same,  for  his  own  use,  before  any  jurisdiction  having 
cognizance  thereof. 


66.  1784,  c.  211. 

67.  1737,  c.  265,  s.  4. 


CHAPTER  60. 


INTERNAL-  IMPROVEMENTS. 


AN  ACT  TO  ESTABLISH  A  FUND  FOR  INTERNAL  IMPROVEMENT,  AND 
TO  CREATE  A  BOARD  FOR  THE  MANAGEMENT  THEREOF. 


Fund  estab- 
lished. 


Section 

1.  Fund  established. 

2.  Of  what  it  shall  consist. 

3.  Board  of  internal  improvements   in- 

corporated . 

4.  Board  may  appoint  a  secretary. 

6 .  Power  of  the  board  to  make  rules,  &c. 

6.  Their  duty  in  making  contracts. 

7.  Their  power  in  subscribing  to  public 

works. 


Section 
8.  Fund  to  be  deposited  in  the  treasury 

and  to  be  drawn  for  by  the  board. 
9-  The  board  to  keep  a  record  of  their 
proceedings,  and  report  to  the  Gen- 
eral Assembly. 
10.  The  State  to  be  a  stockholder  in  any 
company  to  the  amount  she  may 
advance. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JSTorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  a  fund  shall  be  and  the  same  is  hereby  created,  to  be  de- 


1.  1819,  c,  959,  S.  I. 


Chap.  LX.]   internal  improvements.  347 

nominated  "  The  Fund  for  Internal  Improvements,"  and  to  be 
applied  exclusively  to  the  internal  improvement  of  this  State,  un- 
less the  necessities  of  the  State  shall  render  it  necessary  for  some 
future  legislature  to  apply  the  said  fund  or  a  part  thereof  to  some 
other  purposes  of  state. 

c:    2.  The  said  fund  shall  consist  of  the  net  proceeds  of  the  sales  Of  what  it 
of  the  lands  lately  acquired  by  treaty  from  the  Cherokee  Indians,  ^  ^   consist, 
and  also  of  the  dividends  of  the  stock  owned  by  this  State  in  the 
bank  of  Cape  Fear. 

3.  For  the  purpose  of  preserving  and  improving  this  fund,   and  Board  of  in- 
of  disbursing  such  portions  of  it  as  the  General   Assembly  may  ^™^g  i^corpo^-' 
from  time  to  time  direct  to  be  applied  to  any  object  of  internal  rated, 
improvement,  it  shall  be  and  the  same  is  hereby  vested  in  a  corpo- 
rate body,  to  be  styled  "  The  President  and  Directors  of  the 

Board  of  Internal  Improvements,"  in  which  name  they  shall  have 
a  common  seal  and  perpetual  succession,  subject  to  the  limitations 
hereinafter  provided,  shall  be  capable  of  suing  and  being  sued, 
pleading  and  being  impleaded,  and  shall  have  and  enjoy  all  the 
rights  and  privileges  of  a  corporation. 

4.  The  president  and  directors  of  the  board  shall  have  power  to  Board  may  ap- 
appoint  a  secretary  to  record  their  proceedings,  and  the  person  so  {'"j'^^  ^  ^^"^' 
appointed  shall  receive  for  his  services  the  sum  of  three   dollars 

and  no  more  per  diem,  for  each  day  the  board  shall  be  in  actual 
session,  to  be  paid  out  of  the  revenue  of  the  fund  for  internal  im- 
provement. 

5.  The  president  and  directors  of  the  board  may,  at  any  of  their  Power  of  the 
meetings,  enact,  alter  or  amend  such  rules  as  to  them  may   seem  ^"lYg'^  ^j,'" 
proper  for  the  purpose  of  regulating  the  order  of  their  proceedings  ; 

they  may  adjourn  the  board  for  any  period  not  exceeding  six 
months,  and  shall  have  power  to  make  and  establish  by  laws,  rules 
and  regulations  for  the  better  ordering  of  the  conduct  of  their  offi- 
cers, agents  and  servants  as  to  them  may  seem  expedient  :  Pro- 
vided the  same  be  not  inconsistent  with  the  constitution  and  laws 
of  this  State  and  of  the  United  States. 

6.  Whenever  the  legislature  shall  direct  any  public  improvement  Their  duty  in 
in  this  State,   it  shall  be  the  duty  of  the  board   for  internal  im-  t^acts!^  '^°'^* 
provements  to  let  the  same  out  by  contract,   and  take   from   the 

person  or  persons,  so  contracting,  a  bond  with  good  and  sufficient 
security,  payable  to  the  State  of  North  CaroHna,  in  double  the 
sura  paid  or  contracted  to  be  paid,  with  the  condition  that  he  or 
they  will  faithfully  perform  his  or  their  contract  according  to  the 
plans  or  specifications  agreed  on. 

7.  The  president  and  directors  of  the  board  shall  be  and  they  ^^"cribin'"to" 
are  hereby  authorized  to  subscribe  in  behalf  of  the  State  to  such  public  works, 
public   works,    as   the    General  Assembly  may  from  time  to  time 

agree  to  patronize,  such  portions  of  the  fund  for  internal  improve- 

2.  1819,  c.  989,  s.  2.— 1821,  c.  1083. 

3.  1819,  c.  989,  s.  3. 

4.  1819,  c.  989,  s.  7. 

5.  1819,  c.  989,  s.  9. 

6.  1825,  c.  1294. 

7.  1319,  c.  989,  s.  11. 


348 


INTERNAL    IMPROVEMENTS.         [ChAP.  LX. 


Fund  to  be  de- 
posited in  th.c 
treasury,  and  to 


merit  as  may  be  directed  by  law  :  Provided,  that  no  payment  shall 
be  made  of  any  appropriation  to  any  corporation  for  the  purpose 
of  internal  improvement,  created  exclusively  by  the  authority  of 
this  State,  unless  such  corporation  shall  put  itself  under  the  direc- 
tion of  the  board  of  internal  improvement. 

8.  The  fund  for  internal  improvement,  subject  to  the  orders  of 
the  president  and  directors  of  the  board,  shall  be  deposited  in  the 

be  drawn  for  by  treasury  of  the  State  and  kept  distinct  and  apart  from  all  public 
the  board.  money  ;  it  shall  be  paid  out  and  delivered  by  the  treasurer  of  the 
State  to  the  order  of  the  board,  certified  and  subscribed  by  the 
secretary  and  countersigned  by  the  president  ;  the  treasurer  shall 
keep  a  fair  and  regular  account  of  all  such  disbursements,  and  care- 
fully preserve  the  certificates,  upon  which  the  same  shall  have  been 
made,  and  shall  render  an  account  thereof  to  the  General  Assem- 
bly, at  the  same  time  at  which  he  renders  his  annual  account  of 
the  disbursements  of  the  ordinary  revenue ;  once  in  every  year 
the  board  of  internal  improvements  shall  depute  a  committee  of 
their  body  to  examine  the  accounts  of  all  disbursements  made  by 
order  of  the  board  during  the  year,  and  to  compare  the  accounts 
with  the  treasurer's  books  and  the  certificates  giving  authority  for 
the  payment  of  the  several  sums  or  stock  entered  thereon. 

9.  It  shall  be  the  duty  of  the  board  for  internal  improvement  to 
keep  a  fair  and  accurate  record  of  all  their  proceedings,  which 
shall  at  all  times  be  open  to  the  inspection  of  the  members  of  the 
General  Assembly  and  of  the  president  and  directors  and  other 
officers  interested  therein.  They  shall  report  to  the  General  As- 
sembly, at  or  near  the  commencement  of  every  session  thereof, 
the  exact  state  of  the  fund  for  internal  improvement,  the  progress, 
condition  and  net  income  of  all  the  public  works  under  their  charge, 
the  surveys,  plans  and  estimated  expense  of  such  new  works  as 
they  may  recommend  to  the  patronage  of  the  General  Assembly, 
together  with  such  other  important  information,  as  they  may  have 
it  in  their  power  to  collect,  in  relation  to  the  objects  committed  to 
their  trust. 

10.  When  an  appropriation  shall  be  made   of  any  part  of  the 

many  company  ^^"^^^^^'^  ^^"^  *°  ^^^®  improvement  of  any  river,  canal  or  road,  the 
to  the  amount  improvement  of  which  has  been  already  or  shall  hereafter  be  com- 
mitted to,  and  the  property  therein  vested  in,  a  corporation,  then 
and  in  that  case  the  State  shall  be  considered  a  stockholder  in  said 
company  or  corporation,  and  shall  have  as  many  shares  as  may 
correspond  with  the  amount  of  the  money,  thus  advanced  from  and 
appropriated  out  of  said  fund  for  internal  improvement,  and  the 
acceptance  by  any  company  or  corporation,  as  aforesaid,  of  such 
advance  of  money  by  the  State  shall  and  the  same  is  hereby  de- 
clared to  be  the  expression  of  the  consent  of  the  said  company  or 
corporation  to  the  terms  of  the  advance  on  the  part  of  the  State, 
as  expressed  and  intended  in  this  section. 


The  board  to 
keep  a  record 
of  tneir  pro- 
ceedings, and 
report  to  the 
General  As- 
sembly. 


The  State  to  be 
a  stockholder 


she  may  ad- 
vance. 


8.  1819,  c.  989,  s,  10. 

9.  1819,  c.  989,  s.  12. 

10.  1819,  c.  989,  s.  12. 


Chap.  LXL]     internal  improvements. 


349 


CHAPTER   61. 


AN  ACT  TO  AID  THE  INTERNAL  IMPROVEMENTS  OF  THIS  STATE. 


Section 

!•  The  surplus  revenue  of  the  United 
States  appropriated  to  the  internal 
improvement  fund. 

2.  Who  to  constitute  the  board  of  inter- 

nal improvement. 

3.  Meetings  of  the  board — Compensa- 

tion of  the  members. 

4.  Public  treasurer  to  keep  the  accounts 

—  may  employ  a  clerk  for  that  pur- 
pose. 

5.  Moneys  belonging  to  the  fund  to  be 

deposited  in  the  banks. 

6.  State,  upon  certain  events,  to   sub- 

scribe to  certain  rail  road  companies 
— Payments  upon  such  subscrip- 
tions, how  to  be  made. 


Section 

7.  Board  to  lend  out  the  money  until 

such  subscriptions  are  wanted. 

8.  In  w^hat  event  the  State  shall  be  re- 

leased from  its  obligations  to  sub- 
scribe. 

9.  Surplus  revenue  of  the  United  States 

only,  pledged  for  such  subscriptions. 

10.  Governor  to  cause  a  publication  of 

the  payment  of  any  subscription. 

11.  Profits  of  the  State  subscription  to  be 

added  to  the  literary  fund. 

12.  One  hundred  thousand  dollars  from 

the  internal  improvement  fund,  to 
be  appropriated  to  the  contingent 
expenses  of  the  State  government. 

13.  When  this  act  to  be  in  force. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  ofJS'oTth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  besides  the  funds  heretofore  set  apart  for  internal  improve- 
ments, there  shall  be  added  and  appropriated  for  that  purpose,  all 
the  surplus  revenue,  received  by  this  State  from  the  treasury  of 
the  United  States,  under  the  late  act  of  congress  to  regulate  the 
deposits  of  the  public  money,  after  deducting  the  sum  of  three 
hundred  thousand  dollars,  which  is  to  be  devoted  to  the  redemp- 
tion of  the  public  debt  of  the  State  ;  the  sum  of  three  hundred 
thousand  dollars,  which  is  to  be  paid  for  stock  subscribed  in  the 
bank  of  Cape  Fear  ;  and  the  portion  of  said  surplus  which  is  to  be 
added  to  the  literary  fund,  and  to  be  applied  to  draining  the  swamp 
lands,  according  to  the  provisions  of  sundry  acts  of  the  present 
General  Assembly. 

2.  The  board  of  internal  improvements  shall  hereafter  consist 
of  the  governor  of  the  State  for  the  time  being,  who  shall  be  ex 
officio  president  thereof,  and  of  two  commissioners,  to  be  appointed 
annually  by  the  governor,  by  and  with  the  advice  of  the  council  of 
state  ;  any  two  of  whom  shall  constitute  a  board  for  the  transac- 
tion of  business,  and  the  said  board  shall  have  the  same  powers 
and  authority,  and  be  subject  to  the  same  duties  and  restrictions 
as  the  board  of  internal  improvements  heretofore  existing  ;  and  in 
case  of  vacancies  occurring  in  said  board,  the  governor  and  council 
may  fill  the  same  as  before  directed  ;  and  they  may,  in  like  man- 
ner, remove  any  of  the  commissioners  appointed  as  aforesaid. 


The  surplus 
revenue  receiv- 
ed from  the 
United  States 
appropriated  to 
the  fund  for 
internal  im- 
provement. 


Who  to  con- 
stitute the 
board  of  in- 
ternal im- 
provements. 


1.  1336,  c.  22,  s.  I. 

2.  1836,  C.22,  s.  2. 


350  INTERNAL    IMPROVEMENTS.      [ChA.P.  LXI. 

Meetings  of  3.   The  sald  board  may  hold  its  sessions  wherever  and  whenever 

compensation  the  govemor  may  direct ;  and  the  said  commissioners  shall  receive 

of  themem-  for  their  services  the  sum  of  three   dollars  each  per  day,  and  their 

"^"  travelling  expenses  for  the  time  they  may  be  employed  in  the  pub- 
lic service. 

Public  treas-  4.    The  public   treasurer   shall  keep   the   accounts  of  the  said 

urer  to  keep  board  in  the  same  manner  as  heretofore  ;  and  for  that  special  pur- 

IJie  accounts  —  i  i 

may  employ  a  pose  may  employ  a  clerk  at  a  sum  not  greater  than  three  dollars 
clerk  for  that    pgj.  ^^y^  ^qj.  ^^g  ^j,-jjg  ^e   may  be  engaged  as  such  :  Provided,  that 

his  compensation  shall  not  exceed  the  sum  of  five  hundred  dollars 
in  any  one  year. 
Moneys  belong-  5.  All  the  moneys  which  are  hereby  appropriated  to  the  fund 
;"&j^^°^^^  ^^'^'^'for  internal  improvement,  as  well  as  any  other  moneys  which  may 
iied  in  the  come  into  the  treasury  of  said  board,  shall  be  deposhed  in  the 
banks.  banks  of  this  State,  until  they  shall  be   disposed  of  in  manner  as 

hereinafter  directed. 
State, upon  cer-      6.   Whenever  it  shall  be  made  to  appear  to  the  said  board  of  in- 
subscrfb"' to^°   ternal  improvement,  by  a   certificate,   under  the  corporate  seal  of 
certain  rail       the  Wilmington  and  Raleigh  Rail  Road  Company,  signed  by  their 
panies?'^'        treasurer  and  countersigned  by  their  president,  that  at  least  three 
fifths  of  the  whole  capital   stock  of  said  company,  which  may  be 
necessary  to  construct  said  rail  road  from  the  town  of  Wilmington 
to  Weldon,  on  the   Roanoke  river,  have  been  subscribed  for  and 
taken  by  individuals  or  corporations,    and  that  at  least  one  fourth 
of  such  private  subscriptions,  of  not  less   than  three   fifths  of  the 
whole  capital  as  aforesaid,  has  been  actually  paid  into  the  hands  of 
the  said  treasurer,  and  that  the  remainder  of  said  subscription  is 
either  so  paid,  or  is  made  by  solvent  persons  fully  able  to  pay,  and 
the  said  board  shall  be  satisfied  of  the  truth  thereof,  they  shall  be, 
and  they  are  hereby  authorized  and  required  to  subscribe,  on  be- 
half of  the  State,  for  the  remaining  two  fifths  of  the  capital  of  said- 
Payments  upon  company  ;  and  said  subscription  on  the  part  of  the  State  shall  be 
tions.howtobepaid  in  manner   following,  that  is  to  say  :  one  fourth  thereof  shall 
made.  be  paid  upon  such  certificate  as  aforesaid,  at  the  time  of  subscrip- 

tion ;  one  other  fourth  upon  a  like  certificate,  that  another  fourth 
of  such  private  subscriptions  has  been  paid  by  the  subscribers  ;  the 
next  fourth  upon  a  like  certificate  ;  and  the  residue  upon  a  like 
certificate.  And  the  said  board  are  also  authorized  and  required 
to  subscribe  and  pay,  on  behalf  of  the  State,  to  the  Fayetteville 
and  Western  Rail  Road  Company,  two  fifths  of  the  capital  stock 
which  may  be  necessary  to  construct  said  rail  road  from  the  town 
of  Fayetteville  to  the  Yadkin  river  above  the  Narrows  ;  which 
sum  shall  be  ascertained  by  actual  surveys  and  estimates  of  a  com- 
petent engineer.  And  they  shall  likewise  subscribe  and  pay  on 
behalf  of  the  State,  to  the  North  Carolina  Central  Rail  Road  Com- 
pany, two  fifths  of  the  capital  stock,  which  may  be  necessary  to 
construct  the  rail  road  last  aforesaid  from  the  port  of  Beaufort  to 
the  town  of  Fayetteville,  which  shall  be  also  ascertained  by  a  skil- 

3  1836,  c.  22,  s.  3. 

4.  1836,  c.  22,  s.  4. 

5.  1835,  c  22,  s.  5. 

6.  1836,  c.  22,  s.  6. 


Chap.  LXL]     internal  improvements.  351 

fill  engineer  as  aforesaid  ;  the  subscriptions  and  payments  to  the 
two  latter  companies  being  under  the  same   rules,    regulations  and  ^ 

restrictions,  as  are  herein  before  provided  as  to  the  rail  road  com- 
pany first  mentioned  :  Provided^  that  the  said  board,  by  virtue  of 
such  subscriptions  and  payments  on  behalf  of  the  State,  shall  ap- 
point two  fifths  of  the  whole  number  of  directors  of  each  of  the 
corporations  aforesaid  ;  and  that  in  all  general  meetings  of  the 
stockholders,  in  any  of  said  companies,  the  said  commissioners  of 
internal  improvement,  or  any  other  representative  of  the  State, 
whom  the  said  board  may  appoint,  shall  be  entitled  to  two  fifths  of 
the  whole  number  of  votes,  which  may  be  given  at  such  meeting. 

7.  Until    the    said    funds    for    internal   improvements   shall   be  ^°^J^  to  lend 
actually  required  for  the  payment  of  the  subscriptions  herein  di-  until  such  sub- 
rected  to  be  made,  or  for  some  other  object  to  which  they  shall  *'="Pt^°^s  ^"^^x^* 
be  devoted  by  the  legislature,  it  shall  be  the   duty  of  the   board 
aforesaid,  and  they  are  hereby  authorized  and  required,  to  lend  the 

same  upon  good  security,  either  to  individuals  or  corporations, 
taking  bonds  therefor  payable  semiannually,  but  capable  of  renewal 
should  the  board  not  direct  otherwise,  and  bearing  interest  from 
date  ;  which  said  bonds  shall  be  recorded  by  the  treasurer  of  the 
board,  in  a  book  kept  for  that  purpose,  and  shall  be  deposited  as 
special  deposites  in  one  of  the  banks  in  this  State. 

8.  If  any  of  the  aforesaid  incorporated  companies  should  fail  to  In  what  event 
obtain  the  requisite  number  of  private  subscribers  to  give  to  such  ^e  released 

company  a  corporate  existence  by  the  terms  of  its  charter,  for  oneffo^.its  ob- 

'■  r  1     r         1  T  f    1  ^  •  r^i     ligation  to  sub- 

year  n-om  and  alter  the  adjournment  oi  the  present  session  oi  the  scribe. 

General  Assembly,  or  shall  fail  to  commence  the  construction  of 

their  rail  road,  and  to  call  in  and  receive  one  fourth  of  the  payment 

on  the  subscription   as  aforesaid,  before  the  next  regular  biennial 

session  of  the  same,  or  shall  fail  to  complete  the  same  within  the 

time  limited  by  their  acts  of  incorporation,  then  the  State  shall  be 

no  longer  bound  to  make  or  pay  the  subscriptions  aforesaid. 

9.  No  other  fund,  than  the  portion  of  the  surplus  revenue  first  Surplus  rev- 
aforesaid,  shall  be  considered  as  pledged  for  said   subscriptions  ;  unrte°d'^st'a^tes 
and  the  State  may  cease  to  be  a  subscriber  after  said   surplus   is  only,  pledged 

ovViQiiatorl      Vint   oItqII    Vio    q    ctnnlrlir>lrl Ar   tn   tlip    umniint    nf     sharCS     for  t^"".®"?"  '''^"" 

scriptions. 


which  she  has  actually  paid  in  any  of  said  companies. 

10.  It  shall  be  the  duty  of  the  governor,   as  president  of  said  Governor  to 
board,  during  the  recess  of  the  General  Assembly,  to  cause  publi- ij^^tf^^  ^f\hg 
cation  of  any  subscription  or  payment,  made  in  pursuance  of  this  payment  of  any" 

1  !•  IT  •tJi.+k^  subscription. 

act,  to  be  made  in  one  or  more  public  newspapers  printed  at  tne 
city  of  Raleigh,  as  soon  thereafter  as  the  same  can  be  conveniently 
done. 

11.  All  the  profits  accruing  to  the  State,  from  her  subscription  Profits  of  the 
under  this  act  to  internal  improvement,  and  from  loans  which  i^^^y  fcript?on"t''o  be 
be  made  by  the  board,  shall  be  added  to  the  literary  fund.  added  to  the 

12.  From  the  fund  set  apart  and  estabUshed  by  this  act,  to  aid  "terary  fund. 

7.  183G,  c.  22,  s.  7. 

8.  1836,  c.  22,  s.  8. 

9.  1836,  c.  22,  s.  9. 

10.  1836,  c.  22,  s.  10. 

11.  1836,  C.  22,  s.  11. 

12.  1S36,  c.  36.  s.  1. 


352 


$100,000  from 
the  internal  im- 
provement 
fund  to  be  ap- 
propriated to 
the  contingent 
expenses  of 
the  State  gov- 
ernment. 

When  this  act 
to  be  in  force. 


JUSTICES  OF  THE  PEACE.       [ChAP.  LXII. 

internal  improvements  in  this  State,  the  sum  of  one  hundred  thou- 
sand dollars  shall  be  and  the  same  is  hereby  appropriated  for  de- 
fraying the  civil  and  contingent  expenses  of  the  State  government, 
if  the  same  shall  be  deemed  necessary  and  requisite  ;  and  in  the 
disbursement  of  the  moneys  belonging  to  said  fund,  the  appropria- 
tion hereby  made  shall  be  preferred  to  those  herein  before  de- 
signated. 

13.   This  act  shall  be  in  operation  from  and  after  its  ratification. 

13.   1836,  c.  22,  s.  12.— c.  36,  s.  2- 


CHAPTER  62. 


JUSTICES  OF  THE  PEACE 


AN  ACT  CONCERNING  THE  POWER  AND    JURISDICTION   OF  JUSTI- 
CES OF  THE  PEACE. 


P 


Section 

1.  Within  what  time  a  person  appointed 

a  justice  must  take  the  necessary 
oaths  for  qualifying  himself—  Pen- 
alty for  acting  without  qualifying. 

2.  No  justice  who  is  a  candidate  for  the 

office  of  sheriff,  &c.  shall  vote  or 
sit  on  the  bench  at  the  election — 
Penalty  for  so  doing. 

3.  A  justice  removing  and  remaining 

out  of  the  county  twelve  months,  to 
lose  his  office. 

4.  Power  of  justices  in  the  counties. 

5.  Justices  not  to  practise  as  attorneys 

in  the  county  courts  of  their  own 
counties,  nor  to  act  as  clerk,  sheriff, 
&c. — Accepting  such  appointments 
to  vacate  his  office,  and  he  shall  not 
act  as  a  justice  without  a  re-ap- 
pointment. 

6.  Justice's  jurisdiction  in  civil  matters. 

7.  Warrants   from   a  justice   when  re- 

turnable—Officer to  take  bail  when 
required. 

8.  A  defendant  arrested  and  refusing  to 

give  bail  to  be  committed — Where 
warrant  to  be  tried,  and  duty  of 
the  officer  in  relation  thereto. 

9.  Regulations   respecting   bail —  How 

they  are  to  be  proceeded  against. 
10    Bail  may  arrest  principal  in  order  to 
surrender  him. 


Section 

11.  Justice's  execution  how  to  issue  and 

be  returned — Defendant  may  stay 
execution  by  giving  security — How 
such  security  to  be  given. 

12.  No  stay  allowed  on   a  former  judg- 

ment. 

13.  Justice   may    upon   sufficient   cause 

shown,  postpone  or  continue  a  trial. 

14.  Depositions  of  witnesses, when  al- 

lowed to  be  read  on  a  trial. 

15.  When  a  judgment  is  obtained  in  the 

absence  of  a  party,  within  what 
time  and  how  a  new  trial  may  be 
obtained. 
16  Justice's  execution  when  returnable, 
to  whom  to  issue,  and  against  what 
property. 
17.  Justice  to  direct  witnesses  to  be 
summoned,  which  shall  be  done  by 
the  officer — Penalty  on  witnesses 
for  not  attending. 

Execution  against  a  person  removing 
out  of  the  county,  how  to  be  pro- 
ceeded on. 

How  a  judgment  of  a  justice  may 
be  removed  from  one  county  to 
another. 

A  justice  may  accept  an  appoint- 
ment under  the  United  States. 

Justice's  process  not  to  abate  for 
want  of  form. 


18. 


19. 


20. 


21. 


ni^i-i' 


&l 


^1 


Chap.  LXIL]     justices  of  the  teace. 


353 


Section 

22.  Either  party  may  appeal  from  a  jus- 

tice's judgment. 

23.  How  security  for  appeal  shall  be  giv- 

en and  proceeded  against. 

24.  Justice  to  return  appeals  to   court  on 

or  before  the  second  day  of  the 
term,  and  to  summon  witnesses. 

25.  How  and  in  what  time  a  party  desi- 

rous to  appeal  or  stay  execution, 
but  is  unprovided  with  his  sureties, 
shall  proceed  to  obtain  such  appeal 
or  stay  of  execution — How  a  party 
shall  proceed  who  was  unable  to 
attend  the  trial  from  sickness  or 
other  sufficient  cause — Duty  of  the 
justice  and  constable,  upon  such 
appeal  being  granted,  or  stay  al- 
lowed. 

26.  Execution  may  issue  before  the  stay 

or  appeal  is  granted. 


Section 

27.  Upon   security  given  for  the  stay  or 

appeal,  the  officer  must  return  the 
execution  to  the  justice. 

28.  Justices    may  restrain  rioters    and 

disturbers  of  the  peace. 

29.  Duty  of  two  justices,  with  the  sheriff, 

in  suppressing  unlawful  assemblies, 
riots,  &c. 

30.  The  justices  dwelling  nearest,  to  per- 

form this  duty. 

31.  All  magistrates  to  act  in  suppressing 

riots,  &c. 

32.  Constables  to  serve  notices. 

33.  How  the  notice  to  be  served  and  re- 

turned. 

34.  Penalty  on  constables  for  failing  to 

serve  notices. 

35.  Notice   may  be  given  and  proved  as 

heretofore. 


1.  Be  if  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

That  every  person  appointed  a  justice  of  the  peace,  before  enter-  ^^'thln  what 

.  .  ••  tini6  a,  t)Grsoii 

ing  upon  and  executing  the  said  office,  shall,  within  twelve  months  appointed  a 
thereafter,  and  not  after  that  time  unless  re-appointed,  pubhcly  in  Justice  must 
the  court  house  of  his  county  on  a  court  da}^,  take  the  oaths  ap-  sary  oaths  for 
pointed  or  which  shall  be  appointed  by  the  General  Assembly  for  quahfymg  him- 
the  qualification  of  pubhc  officers,  and  also  an  oath  of  office.     And 
if  any  person  shall  presume  to  execute  the  office  of  a  justice  of  the  Penalty  for  act- 
peace,  without  first  qualifying  himself  in  the  manner  by  this  act  "J^^jj^^j  "*• 
required,   he   shall  for  every  such  offence  forfeit  and  pay  the  sum 
of  two  hundred  dollars,  one  half  thereof  to  the  county,  the  other 
half  to  the  person  suing  for  the  same,  to  be  recovered  with  costs  by 
action  of  debt  in  any  court  of  record  within  this  State  where  the 
same  is  cognizable. 

2.  No  justice  of  the  peace,  being  a  candidate  for  the  office  of  a  No  justice,  who 
sheriff,  county  court  clerk,  register,  entry  taker,  surveyor,  county  f^j.^^j^g^jj^^^^^^j. 
trustee  or  ranger  of  his  county,  shall  vote  or  sit  on  the  bench  at  the  sheriff,  &c. 
election  of  such  officer.     And  if  any  justice  of  the  peace  shall  sit  gft^^l^^^^g^f^^^^jj 
on  the  bench  or  vote  in  such  election,  his  vote  shall  not  be  count-  at  the  election, 
ed,  and  he  shall  forfeit  and  pay  for  every  such  offence  the  sum  ofpenaltyforso 
one  hundred  dollars,  to  be  recovered  by  action  of  debt,  one  half  to  doing. 

the  person  suing  for  the  same,  and  the  other  half  to  the  use  of  the 
county. 

3.  When  any  justice  of  the  peace  hath  or  shall  remove  himself  a  justice  re- 
out  of  the  county  for  which  he  is  or  shall  be  appointed,  and  shall  ™oyip?  and  re- 

.  t  ■  -11         ■       1  •  •  maining  out  of 

not  return  within  twelve  months  to  reside  therein,  his  appointment  the  county  12 
shall  be  void  :  and  it  shall  not  be  lawful  for  such  justice  to  act  as  JJ|°"J^®j^*°  ^"^^ 
a  justice  of  the  peace,  unless  re-appointed  by  the  General  Assem- 


1.  1777,  c.  115,  s.  52.— 1793,  C.  382,  s.  5. 

2.  1793,  c.  382,  s.  3.— 1794,  c.  418. 

3.  1793,  c.  332,  s.  4. 

VOL.  I.  45 


354 


JUSTICES    OF    THE    PEACE.      [ChAP.  LXII. 


Power  of  jus 
lices  in  their 
counties. 


pointment. 


Justice's  juris- 
diction in  civil 
matters. 


bly,  under  a  penalty  of  one  hundred  dollars  for  every  such  illegal 
act,  to  be  recovered  by  action  of  debt,  one  half  to  the  use  of  the 
county,  the  other  half  to  the  person  suing  for  the  same. 

4.  All  justices  of  the  peace  shall,  within  their  respective  coun- 
ties, have  full  power  and  authority  to  maintain,  keep  and  preserve 
the  peace,  solemnize  the  rites  of  matrimony  and  issue  necessary 
process  to  enforce  the  collection  of  debts  and  other  contracts 
coming  within  their  jurisdiction. 
Justices  not  to  5.  No  justice  of  the  peace  shall  practise  as  an  attorney  in  the 
torneys  in^the  courts  of  pleas  and  quarter  sessions  of  the  county  for  which  he  is 
county  courts  of  such  justice,  uor  shall  he  be  appointed  or  act  as  clerk  or  deputy 
tieTnOT^o^act'  clerk  thereof,  or  as  sheriff  or  deputy  sheriff,  constable  or  county 
as  clerk,  sher-  trustee,  or  jailer,  within  his  county.  And  if  any  justice  shall  ac- 
Acceptingsuchcept  any  such  appointments,  he  shall  thereby  vacate  his  office  as 
appointments  such  justice  :  and  if  he  shall,  after  the  acceptance  of  any  such  ap- 
fice^andhe^°  "pointment,  act  as  a  justice,  without  a  re-appointment  by  the  Gen- 
shall  not  act  as  eral  Assembly,  he  shall  for  every  such  act  forfeit  and  pay  the  sum 
out^fre-ap-  of  One  hundred  dollars,  to  be  recovered  in  any  court  having  cogni- 
zance thereof,  in  the  name  of  the  wardens  of  the  poor  of  such 
county,  to  be  by  them  applied  to  the  use  of  the  poor. 

6.  All  debts  and  demands  due  on  bonds,  notes  and  Hquidated 
accounts,  when  said  accounts  shall  be  stated  in  writing  and  signed 
by  the  party  from  whom  the  same  shall  be  due,  when  the  principal 
does  not  exceed  one  hundred  dollars,  although  the  principal  and 
interest  together  may  exceed  that  sum,  and  all  debts  and  demands 
of  sixty  dollars  and  under  for  a  balance  due  on  any  special  contract, 
note  or  agreement,  or  for  goods,  wares  and  merchandise  sold  and 
delivered,  or  for  work  or  labor  done,  or  for  specific  articles 
whether  due  by  obligation,  note  or  assumpsit,  or  for  any  judgment 
which  may  have  been  granted  by  a  single  magistrate  and  no  execu- 
tion have  issued  thereon  within  twelve  months,  or  for  any  forfeiture 
or  penalty  incurred  by  any  act  of  the  General  Assembly,  shall  be 
cognizable  and  determinable  by  any  one  justice  of  the  peace  out  of 
court. 

7.  All  warrants  issued  by  a  justice  of  the   peace  shall  be  made 
a  justice  when  returnable  on  or  before  thirty  days  from  the  date  thereof,  Sundays 

excepted,   and  not  after,    and  when   issued   against  any  person, 

•^  executors  and  administrators  and  female   debtors   excepted,  shall 

command  the  sheriff,  constable  or  other  officer,  to  take  the  body 

.  of  the  person  therein  mentioned  as  defendant,  if  to  be  found  in  his 

county,  to  answer  the  complaint  of  the  plaintiff  in  such  warrant  be- 

Officer  to  take  ^qyq  gome  iustice  of  his   county  ;   and  such  officer,  when  required 

l3Q.i1  when  re-  .      ,  . 

by  the  plaintiff,  shall  take  bond  with  sufficient  security  of  the  party 
arrested  in  double  the  sum  for  which  such  person  shall  be  held 
in  arrest,  (which  sum  and  how  due  shall  be  expressed  in  the  war- 
rant,) conditioned  for  his  appearance  at  a  certain  time  and  place, 
therein  to  be  specified,  before  some  justice  of  the  county  where 


Warrants  from 


quired. 


4.  1741,  c.  23,  s.  1.— 1778,  e.  134,  s.  1.— 1777,  c.  11.5,  S.  56. 
.'■>.  ISOS,  c.  747,  s.  1,2  and  3.— 1809,  c.  707,  amended. 

6.  1777,  c.  115,  s.  62.  — 1785,  c.  233,  s.  4.  — 1786,  c.  253,  s.  7.— 1794.  c.  414,  s.  1.— 1802, 
c.  fiOO,  s.  1.— 1S03.  c.  627,  s.  1.— 1820,  c.  1045,  s.  1.— 1823,  c.  9.— 1829,  c.  32. 

7.  1794,  c.  414,  s.  2  and  6.— 1823,  c.  1209. 


Chap.  LXIL]    justices  of  the  peace.  '  355 

the  warrant  issued,  which  bond  shall  be  assigned  by  such  officer  to 
the  plaintiff  and  returned  with  the  warrant  and  shall  be  filed  by  the 
justice  that  shall  try  the  warrant  with  the  other  papers  in  the  suit  ; 
and  in  case  the  sheriff,  constable  or  other  officer  shall  fail  or  neglect 
to  take  such  bond  wuth  security  as  aforesaid,  he  shall  be  held  and 
deemed  special  bail  and  the  plaintiff  may  proceed  to  judgment 
against  him  according  to  the  rules  hereinafter  prescribed. 

8.  When   any  sheriff,   constable   or  other    officer  shall  serve  a  A  defendant 
warrant  on  any  person  or  persons,  who  shall  refuse  to   give  bond  refusin<^  to 
and  security  for  his  or  her  appearance  as  aforesaid,  such  officer  is  gi'^e  bail,  to  be 
hereby  required  to   commit  such  person  or  persons  to  the  jail  of '^°"™^^  ^  ' 
his  county,  in  order  that  he  may  have  such  person  or  persons  forth- 
coming at  the  day  appointed  for  trial,  and   it  shall  be  the  duty  of 

such  officer  to  produce  his  prisoner  at  such  trial,  and  all  warrants.  Where  war- 
whether  by  summons,  arrest  or  attachment,   shall  be  heard  or  de- t^gjj^  ^^°JJ^'^^t 
termined  on  the  day  appointed  by  the  officer  serving  the  warrant  of  the  officer  m 
as  aforesaid,  which  day  shall  be  on  or  before  the  return  day  get'^®^^^^°°^^^'^*^^°- 
forth  in  the  warrant,  unless  the  justice  shall  for  good  reasons  put 
off  the   trial  to  some   other   day  at  his  discretion.     And  in  case 
the  plaintiff  shall  fail  to  attend  or  prosecute  his  suit  on  the  day  ap- 
pointed as  aforesaid,  the  defendant  appearing  shall  be  discharged, 
and  it  is  hereby  declared  to   be  the  duty  of  the  officer,  serving  a 
warrant,  to  notify  the  plaintiff"  of  the   time  and  place  appointed  to 
try   and   determine  the   cause  :    Provided,  that  when  the   sheriff, 
constable  or  other  officer  shall  have   committed   any  defendant  to 
jail  as  aforesaid,  it  shall  be  the  duty  of  such  officer  to  give  imme- 
diate notice  thereof  to  some  justice  in  the  county,  and  such  justice 
shall  appoint  a  day  for  the  trial,  and  notice  of  the  time  of  such  trial 
shall  be  given  and  served  on  the  plaintiff"  by  the  officer  who  served 
the  warrant. 

9.  All  bail,  taken   according  to  the  directions  of  this  act,  shall  Regulations  re- 
be  liable  to  the  recoverv  of  the  plaintiff,  but  the  plaintiff  after  final  1?^'^^^",°  ^^^^• 

•     1  1     11  1  •  •  1       f    -1  -1  How  they  are 

judgment  sliallnot  take  out  execution  against  the  bail,  until  an  exe- to  be  proceeded 

cution  against  the  body  of  the   defendant  be  first  returned  by  the  '^S'^i'^^^- 

sheriff',  constable  or  other  officer  that  the  defendant  is  not  found  in 

his  county,  and  not  until  a  notice  in  writing,   issued  against  the 

bail  by  the  justice  who  has  possession  of  the  papers  in  the  original 

suit,  hath  been  made  known  to  the  bail ;   and   after  the  return  of 

such   execution   against  the   principal  and  notice   against  the  bail, 

execution  may  issue  against  the  principal  and  bail  or  any  of  them 

or  any  of  their  estates,  unless  the  bail  shall  make  it  appear  that  the 

principal  is  dead,  or  that  the  judgment  has  been  satisfied,  or  unless 

the  bail  shall  surrender  the  principal,  at  or  before  the  return  of 

such  notice  to  the  officer  who   served  the  notice,  in  which  latter 

case  the  justice  shall  commit  the  principal  to  the  jail  of  his  county 

until  he  shall  satisfy  the  judgment  and  costs. 

10.  Such  bail  shall,   at  any  time    before   final  judgment  liad  jS^gj^p'JI^^-p^'j -^ 
against  him,  have  full  power  and  authority  to  arrest  the  body  of  order  to  surren- 


S.   1794,  c.  414,  s.  3. 

9.  1794,0.  414,  s.  4. 

10.  1794,  c    414,  s.  H. 


356 


JUSTICES    OF    THE    PEACE.      [ChAP.  LXIL 


his  principal,  and  secure  him,  until  he  shall  have  an  opportunity  of 
surrendering  him  in  discharge  of  himself  to  the  officer,  who  made 
the  arrest  or  served  the  notice,  and  such  officer  is  hereby  required 
to  receive  such  surrender  and  hold  the  body  of  the  defendant  in 
custody,  as  if  bail  had  never  been  given. 

eSi:?howto,     j^-.  .y^t^^  '^  gi;^"  by  a  single  magistrate,  it  shall 

issue  and  be  re-  ^6  m  his  power  or  that  of  any  other  justice  of  the  peace  to  award 
turned.  execution  against  the  goods  and  chattels,  lands  and  tenements    or 

body  of  the   party  cast,  which  process  shall  be  executed  and  re- 
turned by  the  sheriff,  constable  or  other  lawful  officer  to  whom  the 
same  may  be  directed,  in  the  same  manner  as  other  writs  of  fieri 
facias   or  capias  ad  satisfaciendum  are  to  be  executed  and  return- 
Defendant  maySd.     Provided  ahcays,  that  where  a  judgment  shall  be  eiven  by  a 
byliTglr  Justiceof  the  peace  as  aforesaid,  execution  thereon  shall  be  stayed 
curfty.  in  the  lolloivmg  manner,  viz  :   for  all  sums  not  exceeding  four  dol- 

lars, twenty  days  ;  for  all  sums  above  four  dollai-s  and  not  exceed- 
ing ten  dollars,  sixty  days  ;  for  all  sums  above  ten  dollars  and  not 
exceeding  twenty  dollars,  one  hundred  and  twenty  days  ;  and  for 
How  such  se-   f'-  sums  above  twenty  dollars,  six  months.     And  for  the  true  and 
curity  to  be      faithful  payment  thereof  with  interest  and  costs,  the  party  praying 
such  stay  of  execution  shall,  if  required,  give  sufficient  security, 
and  the   acknowledgment  of  such   security  entered  by  the  iustice 
and  signed  by  the  party  shall  be  sufficient  to  bind  him  :  and  if  the 
judgment  shall  not  be  discharged,  at  the  time  to  which  the  execu- 
tion has  been  stayed,  then  it  shall  be  lawful  for  the  justice,  who  has 
possession  of  the  judgment,  to  issue  execution  as  aforesaid  against 
the  principal  and  security. 
No  stay  allow-      12.  When  any  warrant  shall  be  granted  on  a  former  iudgment 

l^^^llr^'  °?/^  JT^  "^^"^^^  ^^^^"^  ^^^  former  judgment  shall  hi  evidence 
of  the  debt,  subject  to  such  deductions  as  the  defendant  may  make 
appear  to  have  been  paid,  and  if  judgment  in  such  case  passes 
agamst  the  defendant,  he  shall  not  be  entitled  to  any  stay  on  the 
same.  J       j 

i^on'suSnt       ^^'  ^^^^^  justice  of  the   peace,  before    whom    a    warrant    is 
Se'show"   brought  for  trial,  shall  have  full  power  and  authority,  on  sufficient 

ar  a"       ^''''T  '^°''^"  °"   °''^'  ^^  ^''^'^'  '^^  plaintiff  or  defendant,  their 
trial.  agent  or  attorney,  to  postpone  from  time  to   time  or  continue  for 

trial  the  same.  Provided,  such  continuance  or  postponement  shall 
in  no  case  exceed  thirty  days,  and  it  shall  be  lawful  for  any  jus- 
tice of  the  peace  to  act  on  said  postponement  or  continuance,  the 
original  date  of  the  warrant  exceeding  thirty  days  notwithstanding. 

Sr/sSwhen    •,^-    ^r  °"^        '•'u-'^^f  ^^^^^  ^^™"t'  the  testimony  of  a 

XwedTbe    witness,  not  resident  withm  the  county  where   the  same  is  pend- 

readonatrial.ing,   IS  required  by  either  party,  the  deposition   of  said  witness 

taken  by  a  single  magistrate  of  the  county  where  the  witness  may 

be,  upon  reasonable  notice  to  the   adverse  party  of  the  time  and 

place  of  taking  the  same,  shall  be  read  in  evidence,  and  the  mag- 

11.  1794,  c.  414,  s.  1.— 1820,  c.  1045,  s.  1. 

12.  1802,  c.  609,  s.  2.-1803,  c.  627,  s.  2. 

13.  1803,  c.  627,  s.  3. 

14.  1803,  c.  627,  s.  7.— 1831,  c.  9. 


Chap.  LXIL]    justices  of  the  peace.  357 

istrate,  if  the  deposition  is  taken  within  this  State,  shall  have  power 
to  issue  a  summons  to  compel  the  attendance  of  the  witness. 

15.  Whenever   a  iudement  shall  be   2;iven    in  the    absence    of  ^^en  ^j"<^g;- 

.  ,  ,    .      .  ™  1    r       1  1  •        ■  r      1  II        ment  is  obtain- 

either  plamtin    or  delendant  by  any  justice  ol    the  peace,  wnetner  ed  in  the  ab- 

execution  hath  been  issued  or  not,  on    application  of  such  absent  s^"c^.°f.^  P,^''- 

,  .  ,  '       .  .  .'^  *■  ,  r  1       J        ty,  within  what 

party,  his  or  her  agent  or  attorney,  within  ten  days  alter  tne  date  time  and  how  a 
of  said  judgment,  to  the  justice  who  awarded  the  same,  on  suffi-  ?®W"^^  ^^^ 
cient  cause  shown  on  oath  or  affirmation,  why  he,  she  or  they 
could  not  attend  the  day  of  trial,  it  shall  be  the  duty  of  the  said 
justice  to  issue  his  order  to  the  plaintiff,  defendant  or  officer  as  the 
case  may  require,  in  possession  of  the  papers  relative  to  the  suit, 
to  forbear  any  further  proceedings  thereon,  and  immediately  to 
bring  the  same  before  him  or  some  other  justice  for  reconsidera- 
tion :  Provided,  that  the  applicant  shall  give  sufficient  security  for 
his  appearance.  It  shall  also  be  the  duty  of  the  justice  aforesaid  to 
issue  his  summons,  directed  to  some  proper  officer,  to  cause  the 
parties,  with  their  witnesses,  to  appear  before  him  or  some  other  ■ 
justice,  at  such  time  and  place,  not  exceeding  thirty  days  as  he 
may  think  proper,  where  the  case  shall  undergo  a  fair  investigation, 
and  be  subject  to  the  same  proceedings  as  if  it  had  never  been 
acted  on  ;  and  the  officer,  to  whom  the  summons  may  be  directed, 
shall  receive,  for  his  trouble  in  executing  the  same,  the  same  fees 
he  is  entitled  to  for  summoning  witnesses,  to  be  taxed  against  the 
party  at  whose  instance  it  issued. 

16.  All  executions,  issued  by  aiustice  of  the  peace  against  the  Justice's  ex- 

.'J  F  o  ^  ecution,  when 

estate  of  any  person  or  persons,  shall  be  made  returnable  in  three  returnable,  to 
months  from  the  date  thereof,  and  shall  be  directed  to  the  sheriiF,  ^K"'^^^"  ^^.*^^' 
constable  or  other  lawful  officer,  commanding  him'that  of  the  goods  what  property, 
and  chattels  of  the  party  cast  he  make  such  sum  or  sums  of  money 
therein  mentioned,  or,  for  want  of  such  goods  and  chattels  to  sat- 
isfy said  execution,  then  he  levy  on  lands  and  tenements  of  such 
person  or  persons  and  make  return  thereof  to  the  justice,  who 
issued  the  same,  setting  forth  on  the  execution  the  money  he  has 
made  of  the  goods  and  chattels,  and  what  lands  and  tenements  he 
has  levied  on,  where  situate,  on  what  water  course,  and  whose  land 
it  is  adjoining  ;  and  the  justice,  to  whom  the  return  is  made,  shall 
return  such  execution  with  all  other  papers  on  which  the  judgment 
was  given,  to  the  next  court  to  be  held  for  his  county,  which  land 
shall  by  order  of  said  court  be  sold  by  the  sheriff  of  said  county, 
or  so  much  thereof  as  shall  be  sufficient  to  satisfy  said  judgment, 
in  the  same  manner  as  real  property  is  sold  by  writs  of  fieri  facias 
or  venditioni  exponas,  issuing  from  such  court  ;  and  the  clerk  of 
the  court,  where  such  papers  are  returned,  shall,  in  a  well  bound 
book  kept  for  that  purpose,  record  the  whole  of  the  papers  and 
proceedings  had  before  the  justice  ;  and  when  any  execution  shall 
be  returned  to  a  justice  not  fully  satisfied  and  discharged,  it  shall 
be  lawful  for  any  justice  of  the  peace  for  said  county  to  issue 
another  execution  for  the  sum  so  remaining  due  on  the  former  exe- 
cution, y 

15.  1794,  e.  414,  s.  19.  — 1803,  c.  627,  s.  6. 

16.  1794,  c.  414,  s.  1.— 1803,  C.  627,  s.  6. 


353  JUSTICES    OF    THE    PEACE.      [ChAP.  LXII. 

Justice  to  di-         17.   Any  justice  of  the  peace  is  hereby  authorized  and  required, 
to'be^su'mmon-  ^^  application  of  either  plaintiff  or  defendant  named  in  any   orig- 
ed,  which  shall  inal  process,  issued  by  a  single  justice,  to  direct    the  sheriff,  con- 
officer!^   ■*"  ^  ^  stable  or  other  lawful  officer,  by  an  order  in  writing  on  the  process, 
to  summon  witnesses  to  appear  and  give  testimony  in  such  suit,  at 
the  time  and  place  appointed  for  trial  ;  and  each  witness,  faihng  to 
Penalty  on  wit-  appear  and  give  evidence,  shall  forfeit  and  pay  the  sum  of  four  dollars, 
aue^nd'n"'^  ^°^   ^°  '''^^  party  at  whose  instance  he  was  summoned,  and  further  be  lia- 
ble to  the  action  of  the  party  aggrieved  for  damage  sustained  by  his 
non-attendance,  which  fine  shall  be  recovered  before   any  justice 
of  the  peace,  unless  such  witness  on  affidavit  or    otherwise,  shall 
shew  sufficient  cause  to  the  contrary,  subject  to  appeal  as  in  other 
cases. 
Execution  18.  AVhen  any  execution  shall  issue  to  a  sheriff,  constable  or 

son^emovino-'  Other  officer,  in  virtue  of  a  judgment  obtained  before  any  justice  of 
out  of  the  the  peace,  and  the  person  or  persons,  against  whom  such  judgment 
iie^proceedrd*^"  ^^J  ^®  obtained,  shall  remove  him  or  themselves  to  any  other 
on.  county  within   this    State,   and  the  sheriff  or  other  officer  cannot 

find  any  property,  whereon  to  levy  said  execution,  then  and  in 
such  case  the  said  sheriff  or  other  officer  shall  return  such  execution 
to  the  next  court,  to  be  held  for  said  county,  and  the  plaintiff  on 
application  shall  be  entitled  to  an  execution  for  the  whole  or  any 
part  of  said  execution  which  remains  unpaid  by  the  return  of  such 
officer  ;  and  the  clerk,  by  order  of  the  said  court,  shall  make  a 
record  of  the  same,  and  issue  execution  to  the  county,  where  the 
defendant  or  defendants  reside,  in  the  same  manner  and  under  the 
same  rules  as  in  cases  of  judgments  obtained  in  said  courts. 
How  a  judg-  i9_   ii  gjiaii  aj^(j  jnay  be  lawful  for  any  person,  having  a  judgment 

ti'c^e"may  be  re-  or  execution  agaiust  any  person  from  a  justice  of  the  peace,  and 
moved  hom      tj^g  ggifj  defendant  has  no  property  in  the  county  whereon  the  same 

one  county  to  i       i      •     i  i  •  i         i     i       r    i 

another.  Hiay  DC  levied,  to  return  the  execution  to  the  clerk  ot  the  county, 

in  which  judgment  was  obtained  out  of  court,   and  it  shall  be  the 
duty  of  the  clerk  to  certify  under  seal  that  the  justice  or  justices, 
who  gave  judgment,  was  an  acting  justice  or  justices  of  said  county  ; 
on  which  certificate  any  justice  or  justices,  in  any  other  county  in 
this  State,  shall  and  may  award   execution,   for   the  sums  therein 
expressed,  against  such  defendant  or  defendants. 
A  justice  may       20.   It  shall  and  may  be  lawful  for  any  justice  of  the  peace,  who 
pointment^m-  ^^^    '^^  °^'  "^^7  ^®  hereafter  appointed,   to   accept   and   exercise 
der  the  United  any  civil  office  or  appointment  of  profit  or  trust,  under  the  author- 
States,  jj^y  Q^  jj^g  United  States,  the  duties  of  which  appointment  shall  be 

confined  to  this   State- 
Justice's  pro-         21.   No  process  issued  by  a  justice  of  the  peace  shall  be  set 
abate  for  want  aside  for  the  want  of  form,  if  the  essential  matters  are  set  forth 
of  form.  therein. 

Either  party         22.  If  either  of  the  parties  to  a  trial  before  a  justice  of  the  peace 

may  appeal  ■*  j  i 

from  a  justice's 

judgment.  17.  1794,  c.  414,  s.  21. 

13.   1794,  c.  414,  s.  20. 

19.  1797,  c.  477. 

20.  1811,  c.  811. 

21.  1794,  c.  414,  s.  16. 

22.  1777,  C.  115,  s.  63 


Chap.  LXIL]    justices  of  the  peace.  359 

shall  be  dissatisfied  with  the  judgment  given  thereon,  he  may  ap- 
peal to  the  next  term  of  the  court  of  pleas  and  quarter  sessions, 
first  giving  security  for  prosecuting  such  appeal  with  effect. 

23.  In  all  cases  where  appeals  shall  be  granted   from  the  iudg-  J?°^^  secumy 

rj;  o  ^  J  ^     o    tor  appeals  to 

ment  of  a  justice,  the  acknowledgment  of  the  security,  subscribed  be  given  and 
by  him  and  attested  by  the  justice,   shall  be  sufficient  to  bind  the  P™9eeded 

•^         •  1  ■  1      1  J  r  1-1  r     ^  j  against. 

security  to  abide  by  and  periorm  the  judgment  oi  the  court,  and 
where  judgment  shall  be  against  the  appellant,  the  same  shall  be 
entered  on  motion  against  the  security,  and  execution  shall  issue 
against  the  principal,  or  against  both  principal  and  security,  at  the 
option  of  the  appellee. 

24.  When  any  justice  of  the  peace  shall  grant  an  appeal  to  the  Justice  to  re- 

•  ..  turn  £iuD63,Is  to 

county  court,  it  shall  be  the  duty  of  such  justice  to  return  such  ap-  court  on  or  be- 
peal,  on  or  before  the  second  day  of  the  court,  to  which  it  may  be  |°r*^  the  second 
returnable,  and  he  is  hereby  authorized  and  required,  on  apphca-  term,  and  to 
tion  of  either  of  the  parties,   to  issue  subpoenas,   directed  to  the  s^™"i°'i  ^^'^'- 

•  •        H6SSGS 

sheriff  or  other  lawful  officer  in  any  county  in  this  State,  for  wit- 
nesses to  appear  and  give  testimony  at  the  court,  to  which  such 
appeal  is  returnable  ;  and  the  officer,  to  whom  such  subpoena  is 
directed,  and  the  witnesses  summoned  in  consequence  thereof, 
shall  be  under  the  same  rules  and  regulations,  and  subject  to  the  same 
penalties,  and  entitled  to  the  same  pay,  privileges  and  emoluments 
as  if  such  subpoenas  had  issued  from  the  clerk  of  the  court,  to 
which  such  appeal  shall  be  returnable. 

25.  When  any  person,  against  whom  a  judgment  shall  be   ren-Howandin 
dered  by  a  civil  magistrate,   shall  be  desirous  to  appeal  to  the  p^^ny  desirous 
county   court,   or  to  stay  the  same,  and  shall  be  unprovided  with  to  appeal  or 
security  on  the  day  of  trial,  upon  the  request  of  such  person,  his  LT^is  unpro°'^' 
agent  or  attorney,  it  shall  be  the  duty  of  the  justice  rendering  such  vided  with  his 

•    J  i    ^  i  1  i  J  /         ■  1  •  •*•       sureties,  shall 

judgment  to  grant  such  person  ten   days  to   give   his   securities  proceed  to  ob- 
for  an  appeal  or   stay  of  execution,  as  the  case  may  be,  and  he  tai"  such  ap- 
shall  make  an  entry  thereof  on  the  warrant.     And  when  judgment  execmio^n^^  ° 
shall  be  entered  against  either  plaintifi'  or  defendant   in  their  ab- How  a  party 
sencei  the  person  or  persons,  against  whom   such  judgment  hath  ^'^f^^  proceed 

1  •         ^  1  •  1        •  1  •  1  r    1  •'     !■■  c       •  1  who  was  un- 

been  given,  on  making  oath  within  ten  days  oi  the  rendition  oi  said  able  to  attend 
judgment,  before  any  justice  of  the  county  where  such  judgment  gj  j^'^"'^^  ^^^"^ 
may  be  entered,  that  he,  she  or  they  was  or  were  prevented  from  other  sufficient 
attending  on  the  day  of  trial  by  bodily  infirmity,  mistaking  the  day ' 
of  trial,    or  other  sufficient   cause,   and  that  he,   she  or  they  are 
likely  to  be  injured  by  such  judgment,  then  and  in  that  case  it  shall 
and  may  be  lawful  for  such  justice  to  grant  an  appeal  to  the  next 
county  court,  or  stay  of  execution,  on  such  person  or  persons  en- 
tering into  bond  with  sufficient  security,  as  in  other  cases  of  grant- 
ing appeals  or  staying  of  execution  from  the  judgment  of  the  jus- 
tice ;  and  it  shall  also  be  the  duty  of  such  justice  to  give  to  the  Duty  of  the 
party,  craving  such  appeal,   a  written  order  to  the  constable  oi' consTabk 'u 
other   person,    having  such  judgment  in  his  or  their  hands,  com-  such  appeal 
manding  him  to  return   such  judgment   together  with  such  other  oi"siay^uUowed 

23.  1794,  c.  414,  s.  17. 

24.  1794,  C.  414,  S.  IS. 

23.  1312,  c.  832,  s.   1.— 1303.  c.  027,  s.  5. 


cause. 


upon 


360  JUSTICES    OF    THE    PEACE.      [ChAP.  LXIL 

papers   and  documents,   as  may  be  in  their  hands  relative  to  such 
judgment,  to  him  the  said  justice  before  the  next  county  court, 
and  also  commanding  said  officer  to  give  notice  to  the   party,   in 
whose  favor  such  judgment  hath  been  given,  of  an  appeal  having 
been  granted  thereon  ;   and  it  shall  be  the  duty  of  the  justice,  on 
receiving  such  judgment  and  other  papers,  to  make  return  thereof, 
together  with  the  appeal  bond  and  affidavit  of  the  party   craving 
such  appeal,  to  the  next  ensuing  court  of  his  county,  to  be  tried 
as  other  appeals  from  justices'  judgments. 
^surbefore^he      ^^'   Nothing  in  the  preceding  section  contained   shall  prevent 
stay  or  appeal   the  party,   entitled  to  the  same,  from  taking  out  execution,  at  any 
IS  granted.       j.jj^g  before  the  same  is  stayed  or  an  appeal  granted. 
Upon  security       27.   If  any  execution  shall  issue  upon  any  judgment,  where  the 
stay'or'apped,  defendant  prayed  an  appeal  or  stay  of  execution,   before  the  ten 
the  officer  must  (Jays  be  expired,  upon  security  being  given  as  by  this  act  directed, 
ecu^tion  to  the    such  execution  shall  be  returned  to  the  justice  of  the  peace  who 
justice.  issued  it  and  shall  not  be  acted  on  by  any  officer  ;   and  the  officer, 

or  other  person  who  has  any  such  execution,  shall,  due  notice  be- 
ing given  him  in  writing  from  the  justice  who  granted  the  execu- 
tion, deliver  up  the  same  or  be  liable  to  the  action  of  the  party 
grieved. 
Justices  may         28.   Every  justice  of  the  peace,  within  the  county  for  which  he 
^^^i'"j-'\"?^^'"^  shall  be  appointed,  shall  have  power  to  restrain  evil  doers,  rioters 
of  the  peace,     and  disturbers  of  the  public  peace,  and  to   take  them  and   cause 
them  to  be  imprisoned  and  punished,  and  take  of  them,  that  be  not 
of  good  fame,  security  for  their  good  behavior. 
Duty  of  two         29.   If  any  riot,  assembly  or  rout  of  people  against  law  be  made, 
justices,  with    g      ^^Q  iustices  of  the  peace  and  the  sheriff  shall  come  with  the 

theshenfl,m  J  J  /-r  i    i     \  i  i  j    i 

suppressing un- power  oi  the  county  (ii  need   be)  and  arrest  them,  and  the  same 
bir^'es  riotr'  justices  and  sheriff  shall  have  power  to  record  that  which  they  find 
&LC?   '       '     done  in  their  presence  against  law,  and  if  such  offenders  be  de- 
parted before  the  coming  of  the  justices  and  sheriff,  then  the  same 
justices  and  sheriff  shall  dihgently  inquire,  within  a  month  after,  of 
such  riot,  rout  or  unlawful  assembly,   and   shall  record  the  same, 
and  the  record,  so  made  by  them  in  either  case,  said  justices  shall 
return  to  the  next  succeeding  term  of  the  court  of  pleas  and  quar- 
ter sessions  or  of  the  superior  court  to  be  held  for  their  county. 
The  justices  30.   It  shall  be  the  duty  of  the  justices  of  the   peace,  dwelling 

est^\^o"pe^forin '^'o'^^st'  when  such  riot,  rout  or  unlawful  assembly  shall  be  made, 
this  duty.         to  execute  the  provisions  of  the  preceding  section. 
All  magistrates      31.   It  shall  be  the  duty  of  all  magistrates   to  suppress  all  such 
to  act  in  sup-    ^iots,  routs  and  unlawful  assemblies  :   and  they  may,  when  neces- 

prcssini?  riots  j  ti  * 

&,c.  '  sary,  use  the  power  of  the  county  for  that  purpose,  and  shall  take 

such  offenders  and  put  them  in  prison,  to  be  dealt  with  according 
to  law. 

Constables  to        32.   It  shall  be  the   duty   of  all  constables,  in   each  and  every 

serve  notices. 

26.  1812,  c.  832,  s.  1. 

27.  1812,  c.  832,  s  2. 
23.  31  Edw.  3,  c.  1. 

29.  13  Hen.  4,  c.  7,  s.  1. 

30.  13  Hen.  4,  c.  7,  s.  4- 

31.  17  Rich.  2. 

32.  1837,  c.  20,  s.  2. 


Chap.  LXIL]    justices  of  the  peace.  361 

county  within  their  respective  counties,  or  upon  any  bay,  river  or 
creek  adjoining  their  counties,  to  serve  all  notices,  that  shall  be  to 
them  tendered  or  delivered,  which  are  or  may  be  required  by  law 
to  be  given,  for  commencing  or  prosecuting  any  cause  before  any 
justice  of  the  peace  out  of  court. 

33.  The  constable  shall  serve  the  same,  by  delivering  a  true  How  the 
copy  thereof  to  the  person  to  whom  the  same  should  be  delivered,  "erved  and^re- 
if  to  be  found  in  his   county,   or   by  leaving  a  copy  thereof  at  the  turned, 
usual  place  of  abode  of  such  person,  if  in  his   county  ;  and  shall 

certify  on  the  notice,  the  time  when  such  notice  was  served,  or 
copy  left  at  the  place  of  abode  ;  and  such  return  shall  be  evidence 
of  the  service  of  the  said  notice  as  may  be  therein  stated  ;  and  the 
said  constable  shall  deliver  the  said  notice,  with  the  return  thereon, 
to  the  party,  his  attorney  or  agent,  at  whose  instance  such  notice 
issued,  upon  demand  of  the  same. 

34.  Any  constable,  neglecting   or  refusing  to  execute  and  re- Penalty  on  con- 
turn  such  notice,  or  making  a  false   return  thereon,  shall  be  sub-  ?tables  for  fail- 

,  '        .  II-  c  r     •  1        •       ing  to  serve  no- 

ject  to  the  same  action  and  penalties  as  lor  relusing  or  neglecting  tices. 
to  serve,,  or  falsely  returning  process  or  precepts,  directed  to 
him  from  a  justice  of  the  peace  out  of  court,  to  be  prosecuted, 
recovered  and  applied,  as  actions  and  penalties  are  directed  to  be 
prosecuted,  recovered  and  applied,  for  refusing  or  neglecting  to 
serve,  or  falsely  returning  process  or  precepts  issued  from  a  justice 
of  the  peace  out  of  court. 

35.  Nothing  contained  in  the  three  preceding  sections,  shall  pre-  Notice  may  be 
vent  any  person  from  giving  notice,  and  proving  the  same  as  here- proved^as  here- 
tofore, ^ofore. 

33.  1827,    C.20,  s.  3. 

34.  1S27,  c.  20,  s.  4. 

35.  1827,  c.  20,  s.  5. 


Note. —  References  TO  Adjudged  Cases. 

Sect.  6.  Kiddie  vs.  Moore,  2  Murph.  41.  Hamilton  vs.  Parish,  4  Hawks,  283. 
O'Dwyerris.  Cutler,  1  Dev.  312.  Tyer  »s.  Harper,  ib.  387.  Bell  tjs.  Ballew,  ib.  391. 
Perrel  »s.  Underwood,  2  Dev.  HI.  Fentress  vs.  Worth,  ib.  229.  Griffin  vs.  Ing,  3 
Dev.  358.    Wilson  vs.  Jennings,  4  Dev.  90.     Bryan  vs.  Washington,  ib.  479. 

Sect.  7.  Anon-  1  Hay.  398. 

Sect.  U.  Forsythe  vs.  Sikes,  2  Hawks,  54.  Weaver  vs.  Parish,  1  Hawks,  319. 
Governor  vs.  Bailey,  3  Hawks,  463.  Humphries  vs.  Buie,  1  Dev.  378.  Hamilton  vs. 
Parish,  ib.  415. 

Sect.  13.  Shipman  vs.  Maers,  4  Dev.  484. 

Sect.  16.  Lash  w.  Gibson,  1  Murph.  266.  Ellar  »s.  Ray,  2  Hawks,  568.  Nesbitt 
vs.  Ballew,  3  Hawks,  57. — Lanier  vs.  Stone,  1  Hawks,  329. 

Sect.  22.  Dolby  vs.  Jones,  2  Dev.  109. 

Sect.  23.  Picot  vs.  Hardison,  2  Hawks,  532. 

Sect.  25.  Lamon  vs.  Gilchrist,  1  Dev.  176. 


VOL.  I.  46 


362 


LANDS  OF  DECEASED  DEBTORS.    [ChAP.  LXIII. 


CHAPTER  63. 


LiANDS  OF  DECEASED  DEBTORS, 


AN  ACT  PRESCRIBING   THE  MODE  OF   SUBJECTING  THE  LANDS  OF 
DECEASED  DEBTORS  FOR  THE  PAYMENT  OF  THEIR  DEBTS. 


2, 


Section 

1.  In  suits  against  an  executor  or  ad- 
ministrator, upon  the  plea  of  fully 
administered  being  verified,  how 
the  plaintiffshall  proceed  to  subject 
the  real  estate  in  the  hands  of  the 
heirs  or  devisees. 

Heirs  and  devisees  may  contest  the 
finding  of  fully  administered,  in  a 
collateral  issue  with  the  executor 
or  administrator. 

Such  collateral  issue  to  be  tried  at  or 
before  the  second  term. 

When  an  executor  or  administrator 
fails  to  plead  fullj'  administered, 
&c.  or  the  plea  is  found  against 
him  and  he  becomes  insolvent,  how 
the  plaintiflf  shall  proceed — Proviso, 
in  cases  of  collusion. 

Heirs  or  devisees  may  show  that  the 
executor  or  admiaistrator  has  assets 
or  is  not  insolvent. 

Creditor's  title  to  relief  in  equity  not 
affected. 

The  creditor,  on  the  trial  of  the 
scire  facias  against  the  heirs,  &c. 
shall  recover  the  costs  of  the  origi- 
nal suit. 

Where  an  estate  is  indebted  to  the 
executor  or  administrator,  how  he 
shall  proceed  to  subject  the  real 
estate  when  there  is  no  personal 
estate. 

The  scire  facias,  &c.,  how  to  be 
served  when  the  heir  or  devisee  is 
a  minor. 


7. 


8. 


Section 

10.  When  the  heirs  or  devisees  or  any  of 

them  live  out  of  the  State,  and  have 
no  guardian  here,  what  proceedings 
shall  be  had. 

11.  How  a  guardian  shall  proceed  when 

he  has  notice  of  a  debt  or  de- 
mand against  his  ward — Execution 
against  the  estate  of  ajuinor,  when 
and  how  to  issue. 

12.  What  proceedings    shall  be  had  to 

subject  the  real  estate  of  a  deceased 
debtor  in  the  hands  of  the  univer- 
sity. 

13.  The  president,  &c.  of  the  university 

liable  in  like  manner  as  heirs  and 
devisees. 

14.  Lands   held  for  the  life  of  another 

and  coming  to  the  heirs  by  special 
occupancy,  liable  for  the  debts  of  the 
tenant  for  life. 

15.  Lands  of  deceased  debtors  how  long 

liable  for  the  payment  of  his  debts, 
and  within  what  time  a  conveyance 
by  the  heir  or  devisees  shall  be 
void,  as  against  the  creditors — Pro- 
visos. 

16.  Heirs  or  devisees  selling  after  two 

years,  to  be  answerable  to  the 
amount  of  the  land  descended  or 
devised. 

17.  Devises  of   real  estate   void   as   to 

creditors — Creditors  may  have  joint 
or  several  actions  against  the  heirs 
and  devisees. 


1.   B^  it  enacted  hy  the  GeneralJlssemhly  of  the  State  oj  J\orth 

Carolina,  and  it   is  hereby  enacted  by  the    authority  of  the  same, 

In  suits  agamst  That  in  all  suits  at  law,  where  the  executor  or  administrator  of  any 

admfnTstrator'  deceased  person  shall  plead  fully  administered,  no  assets,  or  not 

upon  the  plea    sufficient  assets  to  satisfy  the  plaintiff's  demand,    and  such  plea 

of  fully  ad-  nui/-         i.,.  ..,        .  ^.       .  _  r 

ministered 


shall  be  found  in  favor  of  the  defendant,  the  plaintiff  may  proceed 


1.  1754,  c.  226,  s.  2. 


Chap.  LXIIl.]  lands  of  deceased  debtors.  363 

to  ascertain  his  demand   and  to  sign  judgment  ;  but  before  taking  be^n^^j^enfied, 
out  execution  against  the  real  estate  of  the  deceased  debtor,  a  writ  tig-  ^haii  pro- 
or  writs  of  scire  facias  shall  issue,  summoning  the  respective  heirs  ^^^f^J°  ^^^[-^ff 
and  devisees  of  such  deceased  debtor  to  shew  cause,  why  execu-  i^  ^he  hands  of 
tion  should  not  issue  against  the  real  estate  for  the  amount  of  such  Ae^hdrs  or  de- 
judgment,  or  so  much  thereof  as  there  may  not  be  found  personal 
assets  sufficient  to  discharge  ;  and  if  judgment  shall  pass  against  the 
heirs  or  devisees,  or  any  of  them,  execution  shall  and  may  issue 
against  the  real  estate  of  the  deceased  debtor  in  the  hands  of  such 
heirs  or  devisees,  against  whom  judgment  shall  be  given  as  afore- 
said. 

2.  Upon  the  return  of  such  scire  facias,  the  heirs  and  devisees  g^'F^^^f 
shall  be  at  liberty  to  contest  the  truth  of  the  finding  of  the  issue  m  p^^test  the 
favor  of  the  executors  or  administrators,  and  uppn  the  plea  of  such  fi^^JJS^°f^[f  y 
heirs  or  devisees,  that  the  executors  or  administrators  have  suffi- j^  ^  collateral 
cient  assets,  or  have  wasted  or   concealed  the  same,  the   court  iWwiA  the 
shall  order  the  trial  of  a  collateral  issue  between   the  executors  or  ministrator. 
administrators  and  such  heirs  or  devisees,  which  if  found   against 

the  exectors  or  administrators,  the  original  plaintiff  shall  have  ex- 
ecution, not  only  against  the  goods  and  chattels  of  the  deceased 
debtor,  but  against  the  proper  goods,  chattels,  lands  and  tenements 
of  such  executors  or  administrators. 

3.  When  any  collateral  issue  shall  be  ordered  to  be  made  "P,  |^^J^  t-o^^.^J^^] 
between  the  executors  or  administrators,  and  the  heirs  or  devisees,  at^'or  before  the 
in  pursuance  of  the  preceding  section  of  this  act,  the  same  shall  be  second  term. 
tried  at  or  before  the  second   term  thereafter,  of  the  court  where 

the  said  issue  shall  be  ordered,  and  in  default  thereof,  judgment 
shall  be  rendered  against  the  lands  of  said  deceased  debtor,  in  fa- 
vor of  the  original  plaintiff,  agreeably  to  the  scire  facias^  unless  on 
sufficient  cause  shown  to  the  court,  further  time  shall  be  given  for 
the  trial  of  said  issue. 

4.  Where  the  executors  or  administrators  of  any  deceased  person  When  an  ex- 
shall  omit  to  plead  fully  administered,   no  assets,  or  not   sufficient  milii's'trTtor  ' 
assets  to  satisfy  the   plaintiff's   demand,  or  where  they  shall  plead  fails  to^plead 
the  said  pleas  or  any  of  them,  and  the  same  shall  be  found  against  1,^^,^^,  &c.  or 
such  executors   or  administrators,  and  they  shall  be,  or  afterwards  Ae^pka^i^s^^^ 
become  insolvent,  so  that  the  creditor  cannot  procure  satisfaction  i^;,^  ^nd  he  be- 
for  his  demand,  such  creditor  shall  and  may  have  the  same  reniedy  ~^^;';^°5;^ 
against  the  real  estate  of  such  deceased  debtor  in  the  hands  of  the  plaintiff  shall 
heirs  or  devisees,  and  the  same  process,  as  is  provided  by  the  first  proceed, 
section  of  this  act,  and  if  judgment  be  rendered  against  the  heirs  or 
devisees,  or  any  of  them,  execution  shall  and  may  issue  against  the 

real  estate  of  the   deceased   debtor,  in  the  hands  of  such  heirs  or 
devisees  :   Provided,  that  no  creditor  shall  be  entitled  to  the  reme- j;^";^^'"^ 'J^jl^. 
dy  aforesaid  against  the  heir  or  devisee,  who  shall  be  guilty  of  any  sion. 
negligence  or  collusion   in  prosecuting  his  suit,  whereby  the  exe- 
cutor or  administrator  shall  become  insolvent  to  the  detriment  of 
the  heir  or  devisee,  which  negligence  or  collusion  such  heir  or  de- 

2.  1784,  c.  226,  s.  5. 

3.  1510,  c.  792. 

4.  1807,  C.  716,  8.  1. 


364  LANDS  OF  DECEASED  DEBTORS.    [ChAP.  LXIII. 

visee  may  shew,  on  an  issue  joined  under  the  direction  of  the  said 
court,  before  whom  the  trial  shall  be  had. 
Heirs  or  de-  5.   When  any  creditor  of  any  deceased  person,  claims  to  have 

visees  may       judgment  against  the  real  estate  of  such  debtor,  in  the  hands  of  the 
executor  or  ad-  heirs  or  devisees,  by  reason  of  the    executors'  or  administrators' 
miiiistrator  has  failing  to  plead  the  pleas  aforesaid,  or  on  account  of  the  insolvency 
insolvent.     ^    of  the  executors  or  administrators  as   herein  before  mentioned,  the 
heirs  or  devisees  of  such  deceased  debtor  shall  and  may  be  per- 
mitted to  shew  that  the  executors  or    administrators    have   assets, 
and,  on  an  issue  between  them  and  the  creditor,  that  the  executors 
or  administrators  are  not  insolvent,  but  have  property    to  pay  part 
or  the  whole  of  the  debt  demanded  and  costs  ;  if  both  the  said  is- 
sues shall  be  found  in  whole  or  in  part  for  the  heirs  or  devisees, 
judgment  shall  be  rendered  accordingly,  otherwise  for  the  creditor, 
to'^reiief'in^'^^^       ^'  ■'Nothing  in  the  foregoing  provisions  of  this  act    contained, 
equity  not  af-    shall  affect  the  remedy,  which  any  creditor  has  or  may  have  in 
fected.  equity,  against  the  real  estate  of  any  deceased  debtor,  or  in    any 

manner  change  the  rule  of  decision  in  equity  in  any  such  case. 
The  creditor, on      7.   In  all  cases,  where  the  plea  of  fully  administered  is  found  in 
let  /o*  against  f^^or  of  an  executor  or  administrator,  and  the  plaintiff  in  the  orig- 
ihe  heirs,  &c.    inal  action  resorts  to  a  scire  facias  to  render  the  real  estate  of  the 
the  costs'of  the  deceased   debtor  liable  to  the  satisfaction  of  his  debt,  he  shall  be 
orighial  suit,      entitled  to    recover  all  the  costs  expended  in  his  former  suit,  and 
the  same  shall  be  assessed  by  the  jury,  and  judgment  rendered  there- 
for, in  like  manner  as  for  his  debt. 
Where  an  es-        8.   Whenever  the  estate  of  a  deceased  person  shall  be  indebted 
to  the  executor  to  the  executor  or  administrator,  and  there  shall  not  be  personal 
or  administra-  assets  Sufficient  to  satisfy  the  debts  or  demands  of  such  executor 
shall  proceed    OT  administrator,  it  shall  and  may  be   lawful  for  such  executor  or 
to  subject  the    administrator  thereof,    to    prefer  a    petition    against  the    heir   or 
when  there  is    heirs  and  devisee  or  devisees  of  such  testator  or  intestate,  for  the 
no  personal  es- recovery  of  such  debt  or    demand,  to   the   court  of  the  county 
wherein  such  administration  or  letters  testamentary  were    granted, 
or  to  the  court  of  equity  of  such  county,  in  the  manner  and  under 
the  regulations  prescribed   by  law    for  the  recovery  of  legacies, 
filial  portions  and  distributive  shares,  therein  specially  setting  forth 
the  nature  of  said  debt  or  demand  and  the   amount  thereof,  and 
praying  that  the  heir  or  heirs  of  such  deceased  person  may    be 
made  defendant  or  defendants  thereto  ;    and   such    petition  being 
filed  in  the  clerk's  office,  the  same  proceedings  shall  be  had  thereon, 
and  the  defendant  or  defendants  shall  be  bound  and  subject  to  the 
same    rules,   as   in    cases   of    petition  to    recover  legacies,  filial 
portions  and    distributive   shares,  and  if  a   decree  shall   be   made 
against  such  heir  or  heirs  and  devisee  or  devisees,  or  any  of  them, 
execution  shall  and  may  issue  against  the  real  estate  of  the  deceased 
debtor,  in  the  possession  of  such  heir  or  heirs  and  devisee  or  de- 
visees, against  whom  a  decree  shall  be  given  as  aforesaid. 
'Thesci.  fa.  Sac.      g^  When  any  heir  or  devisee,  against  whom  a  scire  facias  shall 

served  when  5.  1S07,  c.  716,  s.  3. 
the  heir  or  6.  1807,  c.  716,  s.  4. 
devisee  is  a     7.  i832,  c.  19. 

minor.         s.   1789,  c.  311,  s.  1  and  2.— 1806,  c.  704. 
9.  1784,  c.  226,  s.  3.— 1?89,  c.  311,s.  4. 


Chap.  LXIIL]  lands  of  deceased  debtors.  365 

issue  or  petition  be  filed,  shall  be  a  minor  and  have  a  guardian,  the 
scire  facias,  or  the  copy  of  the  petition  and  subpoena,  shall  be  served 
on  such  guardian  ;  but  when  the  minor  has  no  guardian,  then  and 
in  that  case  the  court  shall  appoint  a  guardian  to  defend  the  suit 
for  such  minor. 

10.  When  the  heirs  and  devisees  of  any    deceased  debtor,  or  when  the  heirs 
any  of  them,  shall  reside  out  of  the  State,  so    that  writs  of  scire  °'^  devisees  or 

r     •  ■  ■  1  ,  1  1      1     11    1  any  of  them 

jacias   or  petition  cannot  be  served  on  them,  and  shall  have  no  live  out  of  the 
guardian,  on  which  the  same  can   be    executed,    then  and   in  that  ^^^^•^' ^"^ '^'^^^ 
case  the  sheriff  shall  return  the  fact  to  be   so,  and    another  scire  here,  what  pro- 
JaciaSj  or  a  copy  of  the  petition  and  subpoena  shall  issue,  on  which  |^^^{Ji"S^  ^^^^^ 
the  same  return  shall  be  made,  if  the  parties  still  continue  to  reside 
without  the  limits  of  this  State,  on  which  second  return,  and  like- 
wise on  every  second  return,  that  the  party   or  parties    have  been 
summoned,  and  no  appearance  shall  be  made  upon  such  summons, 
judgment  shall  be  given  against  the  real  estate  in  the  hands  of  such 
heirs  or  devisees. 

1 1 .  When  any  guardian  shall  have  notice  of  any  debt  or  demand  H"w  a  ^ar- 
against  the  estate  of  his  or  her  ward,  he  or  she  may  apply  to  the  ceed  when^T 
county  court,  wherein  such  guardianship  was  granted,  for  an  order  ^^^  notice  of  a 
to  sell  so  much  of  the  personal  or  real  estate  of  such  ward  as  may  again*st  his^^" 
be  sufficient  to  discharge  such  debt  or  demand,  and  such  order  of '^^''d- 

the  court  shall  particularly  specify  what  property  may  be  sold  ;  and 
such  property  shall  be  sold,  on  the  same  credit,  and  under  the  same 
regulations,  as  property  sold  by  executors  or  administrators  is  or 
may  be  by  law,  and  the  proceeds  of  such  sales  shall  be  considered 
as  assets  in  the  hands  of  the  guardian,  for  the  benefit  of  the  credi- 
tors, in  like  manner  as  assets  in  the  hands   of  an  administrator  or 
executor,   after   a  scire  facias  as  by  law  directed  ;   and  the  same 
proceedings  may  be  had  against  such  guardian  with  respect  to  the    ■ 
assets  aforesaid,  as  might  be  had  or  taken  against  an  executor   or 
administrator  in  similar  cases  :   Provided  nevertheless,  that  no  exe-  Execution 
cution  shall  be  levied  on  the  goods  or  chattels,  lands  or  tenements  Tfte^ofVininor 
of  any  minor,   in  the   hands  of  his  guardian,  until  twelve  months  ^^i?"  and  how 
after  judgment  obtained  on  the  scire  facias  aforesaid,  nor  shall  exe-      ^^'^^^'^" 
cution  issue  as  aforesaid  at  any  time  but  on  motion  in  open  court. 

12.  In  all  suits  at  law,  where  the  executors  or  administrators  of  }^J^^t  proceed- 
any  deceased  person  shall  plead  fully  administered,  no  assets,  or  had  to  subject 
not  sufficient  assets  to  satisfy  the  plaintiff''s  demand,  and  such  plea  *'!*' '"•^.'^^  estate 
shall  be  found  in  favor  of  the  defendant,  the  plaintiff  may  proceed  debtor  in  the 
to  ascertain  his  demand  and  to  sign  judgment ;  but  before  taking  out  ^^^P^^*  °/  ^^^ 
execution  against  the  real  estate  of  such  deceased  debtor,  if  there 

be  no  heirs  or  devisees  of  the  estate,  upon  affidavit  made  by  the 
plaintiff,  that  to  the  best  of  his  knowledge  the  person  deceased  died 
seized  of,  or  entitled  to,  certain  real  estate  therein  to  be  described, 
which  real  estate  has  since  come  to  the  possession  of  the  president 
and  trustees  of  the  university  of  North  Carolina,  a  writ  or  writs  of 
scire  facias  shall  and  may  issue  against  the  president  and  trustees 

10.  1784,  c.  226,  s.  4. 

11.  US9,  c.  311,  s.  5.  , 

12.  1791,  c.  352,  s.  1. 


366  LANDS  OF  DECEASED  DEBTORS.    [ChAP.  LXIII. 

aforesaid,  to  be  served  on  their  attorneys   or  agents,  or  either  of 
them,  summoning  them  to  shew  cause  why  execution  should  not 
issue  against  the  real  estate,  for  the  amount  of  such  judgment,  or  so 
much  as  there  may  not  be  personal  assets  to  satisfy  :  Provided  al- 
ways, that  the  said   president  and  trustees  shall,  upon  such  scire 
facias,  be  let  in  to  contest  the  merits  of  the  original  action,  and  if 
judgment  shall  pass  against  the  said  president  and  trustees,  execu- 
tion shall  and  may  issue   against  the  real  estate  of  the  deceased 
debtor  for  the  amount  of  such  judgment. 
The  president,       13.   The  president  and  trustees  of  the  university  of  North  Car- 
fee,  of  the        olina  shall  be  subject  generally  to  the  same  process,  judgment  and 
liabi^in  like     execution,  for  the  whole  amount  of  real  estate  of  any  debtor  de- 
manner  as  heirs  ceased  that  may  come  to  their  hands,  that  the  heirs  of  such  debtor, 
had  he  or  she  left  heirs,  would  have  been  subject  unto,   and   shall 
be  answerable  to  creditors  out  of  the  funds  of  the  university,  for 
the  value  of  such  lands  as  are  by  them  sold,  aliened  or  made  over 
for  the  use  thereof. 
the"lifeolF    ""^       14.  When  any  person  shall  die  intestate,  seized  of  any  estate  in 
another  and      lands,  tenements  and  hereditaments  for  the  life  of  another  person, 
heirs"by  "spe-*^    ^"^^  such  estate  shall  come  to  the  heir  or  heirs  of  the  tenant  for  life 
cial  occupancy,  by  special  occupancy,  the  same  shall  be  chargeable  in  the  hands  of 

liable  for  the        "^    u  u    ■  i,    •  .     u      j  . 

debts  of  tenant  sucn  heir  or  heirs  as  assets  by  descent. 

for  life.  15.  When  any  person  shall  die  seized  of  any  lands,  and  shall  be 

Lands  of  de-    indebted  at  the  time  of  his  or  her  death,  all  the  lands  of  which  he 
how  long  liable  or  she  died   seized,   shall  be  liable  to  the  payment  of  his  or  her 
for  the  payment  debts,  for  the  term  of  two  years  after  the  probate  of  his  or  her  last 
and  within    '  will  and  testament,  or,  in  case  he  or  she  shall  die  intestate,  for  two 
what  time  a      years  after  administration  granted  on  his  or  her  estate  ;  and  all  sales, 
the  heirs  or  de-  Conveyances  or  alienations  of  any  lands  of  a  deceased  debtor,  made 
visees  shall  be   jjy  gj^y  devisee  or  devisees  or  heir  or  heirs  at  law  of  such  deceased 
the  creditors,     debtor,  before  the  expiration  of  two  years  from  the  probate  of  the 
last  will  and  testament  of  such  deceased  debtor,  or  before  the  ex- 
piration of  two  years  after  granting  letters  of  administration  on  the 
estate  of  such  deceased  debtor,  shall  be  utterly  null  and  void,  as  to 
the  creditors  of  such  deceased  debtor  ;  and  the  creditor  or  credi- 
tors of  the  deceased  debtor  may  proceed  against  his  or  her  real 
estate,  in  the  same  manner  as  if  such  conveyance  never  had  been 
made  by  the  devisee  or  heir  at  law  of  such  deceased  debtor  :  Pro- 
Provisos,         vided,  that  nothing  herein   contained  shall  impair,  or  in  any  way 
affect  the  right  of  a  widow  to  dower,  in  the  lands  of  her  deceased 
husband  :  Jind  provided  also,  that  this  act  shall  not  impair,  or  in  any 
way  affect  the  right  of  any  person   or  persons,  to  whom  any  land 
shall  be  devised  in   trust    or    otherwise,   or  to  whom  power  to 
sell  land  shall  be  given  by  any  last  will  and  testament,  for  the  pur- 
pose of  paying  the  debts  of  the  devisor  or  testator,  to  sell  or   dis- 
pose of  the  same  in  order  to  carry  into  effect  the  intention  of  such 
devisor   or  testator,   but  every  such  person  shall  have  the  same 
power  over  such  land  as  he  or  she  now  has,  any  thing  herein  con- 
tained to  the  contrary  notwithstanding. 

13.  1791,  c.  352,  s.  2. 

14.  ISIS,  c.  9S3,  s.    1. 

15.  1830,  c.  36. 


Chap.  LXIIL]  lands  of  deceased  debtors.  367 

16.  In  all  cases  where  any  heir  at  law  shall  be  hable  to  pay  the  Heirs  or  de- 
debts  of  his  or  her  ancestor,  in  regard  of  any  lands,  tenements  or  ^Yg^^j^Q^yg|j.g 
hereditaments  descending  to  him  or  her,  or  where  any  devisee  shall  to  be  answer- 
be  liable  to  pay  the  debt  of  a  testator,  in  regard  to  any  lands  de- ^^Q^°/Q']®jj,g 
vised  to  him  or  her,  and  shall,  after  the  expiration  of  two  years  land  descended 
from  the'  probate  of  the  last  will  and  testament  or  the  granting  of  ""^  ®^^^^  " 
letters  of  administration,  as  set  forth  in  the  preceding  section,  sell, 

alien  or  make  over  the  same,  such  heir  at  law  or  devisees  shall  be 
answerable  for  such  debt  or  debts  to  the  value  of  said  land,  so  by 
him  or  them  sold,  aliened  or  made  over  ;  which  value  shall  be 
ascertained  by  the  jury  empanelled  to  try  the  issue  joined  on  the 
proceedings  between  the  said  parties  ;  in  which  case  all  creditors 
shall  be  preferred,  as  in  actions  against  executors  or  administrators, 
and  execution  shall  be  taken  out  upon  any  judgment  or  decree  ob- 
tained against  such  heir  or  devisee,  to  the  value  of  the  said  lands,  as 
if  the  same  were  his  or  her  own  proper  debt,  saving  that  the  lands, 
tenements  and  hereditaments  bona  fide  aliened  after  two  years,  as 
herein  provided,  shall  not  be  liable  to  such  execution. 

17.  All  devises  of  lands,  tenements  and  hereditaments,  or   of  rearesme  void 
any  rent,  profit,  term  or  charge  out  of  the  same,  made  by  a  debtor,  as  to  creditors, 
shall  be  deemed  and  taken,  only  as  against  the  creditor  or  creditors.  Creditors  may 
his,  her  or  their  heirs,  successors,  executors,  administrators  and  as-  several  actions 
signs,  and  every  of  them  of  such  debtor,  as  null  and  void  ;  and  every  against  the 
such  creditor  shall  and  may  have  and  maintain  his,  her  or  their  ac-  vkees*!" 

tion  or  actions  against  such  devisee  or  devisees,  in  all  cases  and  in 
like  manner  as  such  action  or  actions  might  or  could  be  brought  or 
maintained  against  the  heir  or  heirs  at  law  of  such  deceased  debtor, 
jointly  with  the  heir  or  heirs  at  law,  or  severally. 

16.  1789,  0.  311,  s.  3.— 1807,  c.  716,  s.  2. 

17.  1789,  c.  311,  s.  2. 


Note. — References  to  Adjudged  Cases. 

Sect.  1.  Gardner  I's.  Ellis,  Tayl.  106.  Alston  vs.  Sumner,  2  Hay.  404.  Cardwell 
vs.  Brodie,  1  Murph.  97.  Trimble  vs.  Jones,  3  Murph.  579.  Bonner  vs.  Tier,  3  Dev. 
533.     Jeffreys  vs.  Yarbrough,  1  Dev.  Eq.  506.     Ricks  vs.  Blount,  4  Dev  128. 

Sect.  U.  Bank  of  Newbern  15S.  Stanly,  2  Dev.  477. 

Sect.  16.  Spaight  vs.  Wade,  2  Murph.  295. 

Sect.  17.  Dunnrs.  Keeling,  2.  Dev.  284- 


368 


LEGACIES,    ETC.  [ChAP.  LXIV. 


CHAPTER  64. 


L.EG ACIES,  FILIAL.  PORTIONS  AND 
DISTRIBUTIVE  SHARES. 


AN  ACT  CONCERNING  FILIAL  PORTIONS,  LEGACIES  AND  DISTRIBU- 
TIVE SHARES  OP  INTESTATES'  ESTATES. 


Section 

1 .  Intestates'  estates,  how  to  be  distri- 

buted—Children advanced,  but  not 
to  full  amount,  to  have  their  shares 
made  equal. 

2.  Children  advanced,  to  account  for  the 

same. 

3.  Child  refusing  to  account,  not  enti- 

tled. 

children  entitled  to   a 


4.  Illegitimate 


Section 

share  of  their  mother's  personal 
property — When  illegitimate  child 
dies  without  issue,  how  his  personal 
property  to  be  distributed. 

5.  Legacies,  &c.  recoverable  by  petition 

to  the  superior  or  county  court — • 
Rules  and  method  to  be  observed . 

6.  Power  of  the  court  of  equity  not  to 

be  affected. 


1.   Bi:  it  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted    by  the   authority    of  the  same, 
Intestates'  es-  That  every  administrator  shall  distribute  the  surplus  of  the  estate 
dlstnbuted."  ^  o^  ^is  intestate,  in  the  manner  following,  to  wit :  If  there  are  not 
more  than  two  children,  one  third  part  to  the  wife  of  the  intestate, 
and  all  the  rest,  by  equal  portions,  to  and  amongst  the  children  of 
such  intestate,  and  such  persons  as  legally  represent  such  children, 
in  case  any  of  the   said  children  be  then   dead,   other  than  such 
child  or  children,  who  shall  have   any  estate  by  the   settlement  of 
the  intestate,  or  shall  be  advanced  by  the  intestate  in  his  life  time, 
by  portion  or  portions  equal  to  the  share  which  shall,  by  such  dis- 
tribution, be  allotted  to  the  other  children,  to  whom  such  distribu- 
tion is  to  be  made  ;  and  in  case   any  child,  who  shall  have  any 
Children  ad-    estate  by  settlement  from  the  intestate,  or  shall  be  advanced  by  the 
to  full  amount,  intestate  in  his  life  time,  by  portion   or  portions  not  equal  to  the 
to  have  their    share,  which  shall  be  due  to  the  other  children  by  such  distribution 
equal.  as  aforesaid,  then  so  much  of  the  surplus  of  the  estate  of  such  in- 

testate, to  be  distributed  to  such  child  or  children  as  shall  have  any 
estate  from  the  intestate,  or  were  advanced  in  the  hfe  time  of  the 
intestate,  as  shall  make  the  estate  of  all  the  said  children  to  be 
equal,  as  nearly  as  can  be  estimated.  And  in  case  there  should  be 
no  children,  nor  any  legal  representatives  of  them,  then  one  third 
of  the  said  estate  to  be  allotted  to  the  wife  of  the  intestate,  and 
the  residue  of  the  said  estate  to  be  distributed  equally  to  every  of 
the  next  of  kin  of  the  intestate,  who  are  in  equal  degree,  and  to 
those  who  legally  represent  them  :  Provided,  that  there  be  no 
representatives  admitted  amongst  collaterals  after  brothers'  and  sis- 
ters' children.     If  there  are  more   than  two  children,  then   such 


1.   1776,  c.  79.— 1784,  c.  204,  s.  8. 


Chap.  LXIV.]  legacies,  etc.   '  369 

widow  shall  share  equally  with  all  the  children,  she  being  entitled  to 
a  child's  part ;  and  in  case  there  be  no  wife,  then  all  the  said  es- 
tate to  be  distributed  equally  to  and  amongst  the  children  ;  and  in 
case  there  be  no  child,  then  to  the  next  of  kindred  in  equal  de- 
gree of  or  unto  the  intestate,  and  their  legal  representatives  as 
aforesaid,  and  in  no  other  manner  whatsoever.  And  if,  after  the 
death  of  the  father,  any  of  his  children  shall  die  intestate,  without 
wife  or  children,  in  the  life  of  the  mother,  every  brother  and  sis- 
ter, and  the  representatives  of  them,  shall  have  an  equal  share  with 
the  mother,  of  the  estate  of  the  child  or  children  so  dying  in- 
testate. 

2.  Where  any  person  shall  die   intestate,  who  had  in  his  or  her  Children  ad- 
life  time  given  to,  or  put  into  the  actual  possession  of,  any  of  his  or  count  for^the" 
her  children,  any  personal  property  of  what  nature  or  kind  soever,  same, 
such  child  or  children,  possessed  as   aforesaid,  shall  cause  to  be 

given  to  the  administrator  or  manager  of  such  estate,  an  inventory, 
on  oath,  setting  forth  therein  the  particulars  by  him  or  her  receiv- 
ed of  the  intestate  in  his  or  her  life  time. 

3.  In  case  any  child  or  children,  who  had  in  the  Hfe  time  of  the  Child  refusing 
intestate,  received  a  part  of  said  estate,  shall  refuse  to  give  an  in-  entitled!"  ' "° 
ventory  as  aforesaid,  such  child  or  children  shall  be  considered  to 

have  had  and  received  his  or  her  full  share  of  the  deceased's  es- 
tate, and  shall  not  be  entitled  to  receive  any  further  part  or  share 
thereof. 

4.  Where  any  woman  shall  die  intestate,  leaving  children  com-  illegitimate 
monly  called  illegitimate   or  natural,  born  out  of  wedlock,  and  no  titied'^to  a"' 
children  born  in  lawful  wedlock,  all  such  personal  estate,  whereof  share  of  their 
she  shall  die  possessed,  shall  be  equally  divided  among  such  ille- sonai  property, 
gitimate  or  natural  born  children  and  their  repres.entatives,  in  the  When 
same  manner  as  if  they  had  been  born  in  wedlock  ;  and  if  any  such  chifd  d^s  with- 
illegitimate  or  natural  born  child  shall  die  intestate,  without  leaving  out  issue,  how 
any  child  or  children,  his   or  her  personal   estate  shall  be  equally  prope"ty°'to  be 
divided  among  his  or  her  brothers  and  sisters,  born  of  the  body  of  <iistributed. 
the  same  mother,  and  their  representatives,  in  the  same  manner  and 

under  the  same  regulations  and  restrictions  as  if  they  had  been 
born  in  lawful  wedlock. 

5.  All  legacies,  filial  portions,  distributive   shares  of  intestates'  Legacies,  &c.  . 
estates,  sum  or  sums  of  money  or  other  estate,  due  or  owing  from  pe^itiorrto*'the 
any  person  appointed  guardian  to  any  orphan,  or  from  any  execu-  superior  or 
tors  or  administrators,  or  other  person  whatsoever,  shall  and  may  ^°™  ^  ^^^^  ' 
be  recovered  by  petition   to   the   superior  court  of  the  county  or 

any  inferior  court  of  pleas  and  quarter  sessions,  respect  being  had 
to  the  jurisdiction  of  the  said  court  ;  and  in  all  suits  by  petition  as 
aforesaid,  and  in  the  said  courts   respectively,  the  following  rules  Rules  and 
and  methods  shall  be   observed  :  The  petitioner  may  file  his  peti-  method  to  be 
tion  in  the  clerk's  office,  and  thereupon  a  summons  shall  be  issued 
by  the  clerk  of  the  court,  and,  upon  the  defendant's  being  served 

2.  1792,  c.  364,  s.  2. 

3.  1792,  c.  364,  s.  3. 

4.  1799,  c.  522. 

5.  1715,  c.  15,  s.  4.— 1762,  c.  69,  S.  23. 

VOL.  I.  47 


370  LEGACIES,  ETC.  [ChAP.  LXIV. 

therewith,  and  with  a  copy  of  the  said  petition,  lie  shall  appear  and 
put  in  his  answer  or  plea  upon  oath,  or  demur. 

Upon  an  answer,  plea  or  demurrer  being  filed  as  aforesaid,  the 
petitioner  may  move  the  court  to  have  the  same  set  for  hearing, 
and  immediately  argued,  and  thereupon  the  court  shall  proceed  to 
hear  and  determine  the  same  according  as  the  matter  in  equity  and 
law  shall  appear  to  them,  without  regard  to  form  or  want  of  form 
in  the  petition,  process  or  course  of  proceedings. 

Upon  the  defendant's  being  served  with  a  summons  and  a  copy 
of  the  petition,  ten  days  before  the  court,  to  which  such  summons 
is  returnable,  if  he  shall  fail  to  appear  and  plead,  answer  or  demur  as 
aforesaid,  the  petitioner's  petition  shall  be  taken  pro  confesso,  and 
the  matter  thereof  decreed  accordingly  with  costs,  unless  on  spe- 
cial reason  shewn  to,  and  approved  by  the  court,  time  shall  be  al- 
lowed such  defendant  to  file  such  plea,  answer  or  demurrer. 

And  if  any  defendant  shall  appear  on  such  summons,  and  shall 
obstinately  refuse  to  answer  the  petition  of  the  petitioner,  the  same 
shall  be  taken  pro  confesso,  and  the  matter  decreed  as  aforesaid. 
Every  defendant  shall  be  at  liberty  to  swear  to  his  answer  or  plea 
before  any  justice. 

When  a  plea  or  demurrer  shall  be  overruled,  the  defendant  shall 
file  his  answer  the  same  court.  When  the  petitioner  shall  be 
minded  to  disprove  the  answer  of  the  defendant,  and  support  his 
claims,  he  may  reply. 

Commissions   to  examine  witnesses   may  be  awarded  by    the 
court,  after  rephcation  filed, — the  party  taking  out  such  commis- 
sion giving  the  adverse  party  ten  days  notice  of  the  time  and  place 
of  executing  the  same.     The  court  shall  have  power  to  make  such 
decree  on  the  final  hearing  of  the   cause,  both   as  to  the  sura  de- 
creed to  be  due  and  the  costs  of  the  cause,  as  shall  seem  just  and 
equitable,  and  to  award  therefor  such  execution  as  may  courts  of 
equity  in  similar  cases. 
Power  of  the         6.  Nothing  in  this  act  contained  shall  be  construed  to  restrain 
notU)bea^ct^°^  abridge  the  power  of  the  court  of  chancery,  in  any  matter  or 
€d.  thing  relating  to    orphans   or  their  estate  ;    but   the    said   court 

shall  and  may  hold,  exercise  and  enjoy  the  same  jurisdiction,  pow- 
er and  authorities  therein,  in  as  full  and  ample  manner,  to  all  in- 
tents and  purposes,  as  if  this  act  had  not  been  made. 

6.  1762,  c.  69,  S.26. 


A'b^e.— References  to  Adjudged  Cases. 


Sect  \    Davis  rs.  Duke,  Tayl    213,  S.   C    Conf,  361.  Anon.  2  Hay.  62.    Jones  vs. 
Jones,  2  Murph.  150.  Wilson  vs.  Hightour,  3  Hawks,  76.   Grant  vs.  Bustin,  1  Dev.  and 


Bat.  Eq.  77. 
Sect.  4.  Kimbrough  vs.  Davis,  i  Dev.  Eq.  71. 


Chap.  LXV.] 


LIMITATIONS. 


371 


CHAPTER  65. 

I.IMITATIONS- 


AN  ACT  FOR  LIMITING  THE  TIME  WITHIN  WHICH  ACTIONS  MAY 
BE  BROUGHT,  AND  FOR  DIETING  THE  TITLES  TO  LAND  AND 
SLAVES,  AND    PRESCRIBING    THE    TIME    WITHIN    WHICH    PRE- 

■     SUMPTION  OF  SATISFACTION  MAY  ARISE. 


Section 

1.  Persons    having  right,   shall   make 

claim  to  their  lands  within  seven 
years,  or  be  forever  barred— Pro- 
viso, that  infants,  &c.  may  bring 
suit  within  three  years  after  disa- 
bility removed— Persons  beyond 
seas,  within  eight  years  after  their 
title  accrues— Further  proviso. 

2.  Twentyone  years'  possession  of  land 

under  color  of  title,  and  with  known 
boundaries,  to  be  a  bar  to  the 
State. 

3.  Time  within  which  personal  actions 

must  be  brought. 

4.  Proviso  in  cases  of  writs  of  error  or 

reversal  of  judgment— Proviso  for 
infants, /eraes  corerf,  &c.— Proviso 
when  the  defendant  is  beyond  sea. 
This  act  to  apply  to  bills,  &c.  after 
endorsement,  in  like  manner  as  to 
promissory  notes. 
Time  within    which    penal  actions 

must  be  brought. 
Sureties  to  guardian  bonds  to  be  dis- 
charged after  three  years  from  the 
time  the  orphan  comes  of  age. 
Suits  on  the  bonds  of  sheriffs,  con- 
stables, clerks,  and  clerks  and  mas  ■ 
ters,  to  be  brought  within  six  years. 
Fees  due  to  clerks,  sheriffs,  &c.  to 

be  collected  within  three  years. 
Actions  on  justices'  judgments  to  be 

brought  within  seven  years. 
Creditors  must  claim  within  seven 
years  from  the  death  of  the  debtor, 
or  be  forever  barred 


5. 


10. 


11. 


Section 

12.  Within  what  time  after  the  qualifi- 

cation of  executors  or  administra- 
tors, creditors  must  present  their 
claims — Proviso  for  infants,  &c. — 
Proviso,  when  the  delay  is  at  the 
request  of  the  executor,  &c. — Ex- 
ecutor, &c.  must  have  advertised. 

13.  Time  within  which  presumption  of 

payment  on  judgments,  &c.  may 
arise. 

14.  Time  within  which  presumption  of 

satisfaction  of  mortgages,  &c.  may 
arise . 

15.  Time  witliin    which   a  scire  facias 

against  bail  on  any  judgment  or 
decree  now  existing  must  be  sued 
out. 

16.  Time   within   which  a  scire  facias 

against  bail  in  any  suit  now  exist- 
ing or  hereafter  to  be  brought  must 
be  sued  out— Proviso,  where  the 
plaintiff  marries  or  dies  after  judg- 
ment—Proviso for  infants,  &c. 
U.  Time  not  to  be  reckoned  in  case  of 
nonsuit,  arrest  of  judgment  or  re- 
versal for  error. 

18.  Adverse  possession   of  a  slave  for 

three  years  to  give  title— Proviso 
as  to  parol  gifts. 

19.  Mortgage  of  personal  estate  must  be 

redeemed  within  two  years  after 
forfeiture— Proviso,  that  mortga- 
gees may  file  their  bills  to  foreclose 
at  any  time  after  forfeiture— Pro- 
viso for  mortagors  becoming  luna- 
tic, &c. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  Mrth 

Carolina,  and  it  is  hereby  enacted  by   jj^^^  ««^^J^f  j/j^^;^ 

That  no  person  or  persons  nor  their  heirs,  vvhichnereaiier  snau  ^.^,  ^^^._^  ^^ 

have  any  r^ght  or  title'  to  any  lands,  tenements  or  hereditaments, 

1.  1715,  c.  2,  s.  3  and  4,  amended. 


372  LIMITATIONS.  [ChAP.  LXV. 

their  lands  shall  thereunto  enter  or  make  claim,  but  within  seven  years  next 
y^ars^Tbe for- ^fter  his,  her  or  their  right  or  title  descended  or  accrued,  and  in 
ever  barred,  default  thereof  such  person  or  persons,  so  not  entering  or  making 
claim,  shall  be  utterly  excluded  and  disabled  from  any  entry  or 
Proviso,  that  claim  thereafter  to  be  made  :  Provided  nevertheless,  that  if  any 
maTbring'^suit  person  or  persons,  that  is  or  hereafter  shall  be  entitled  to  any  right 
within  three  or  claim  of  lands,  tenements  or  hereditaments,  shall  be,  at  the  time 
abUity^re"  ^^'  ^he  Said  right  or  title  first  descended,  accrued,  come  or  fallen, 
moved.  within  the  age  of  twenty  one  years,  feme  covert,  non  compos  men- 

tis, imprisoned  or  beyond  seas,  that  then  such  person  or  persons 
shall  and  may,  notwithstanding  the  said  seven  years  be  expired, 
commence  his,  her  or  their  suit,  or  make  his,  her  or  their  entry, 
as  he,  she  or  they  might  have  done  before  this  act,  so  as  such  per- 
son or  persons  shall,  within  three  years  next  after  full  age,  discov- 
erture,  coming  of  sound  mind,  enlargement  out  of  prison,  or 
_  ,        ,  persons  beyond  seas,  within  eight  years   after  the  title  or  claim 

X  Grsons  DGVond  ■*-•'*-'•' 

seas,  withm  becomes  due,  take  benefit  and  sue  for  the  same,  and  at  no  time 
eight  years  affgr  the  times  or  limitations  herein  specified  ;  but  that  all  pos- 
accrues.  sessions,  held  without  suing  such  claim  as  aforesaid,  shall  be  a  per- 

petual bar  against  all,  and  all  manner  of  persons  whatsoever,  that  the 
expectation  of  heirs  may  not,  in  a  short  time,  leave  much  land  im- 
possessed,  and  titles  so  perplexed,  that  no  man  will  know  of  whom 
Further  pro-     ^o  take  or  buy  land.     Provided  also,  that  if  in  any  action  of  eject- 
viso.  ment  for  the  recovery  of  any  lands,   tenements  or  heredhaments, 

judgment  be  given  for  the  plaintiff,  and  the  same  be  reversed  for 
error,  or  a  verdict  pass  for  the  plaintiff,  and,  upon  matter  alleged 
in  arrest  of  judgment,  the  judgment  be  given  against  the  plaintiff 
that  he  take  nothing  by  his  plaint,  writ  or  bill,  or  a  verdict  be  given 
against  the  plaintiff,  in  all  such  cases  the  party  plaintiff,  his  heirs  or 
executors,  as  the  case  shall  require,  may  commence  a  new  action 
or  suit  from  time  to  time,  within  one  year  after  such  judgment  re- 
versed, or  judgment  given  against  the  plaintiff. 
Twentyone  2.   Where  any  person  or  persons,  or  the  person  or  persons  un- 

sf(m^o?°ami'    ^^^  whom  he,  shc  or  they  claim,  shall  have  been,  or  shall  continue 
under  color  of  to  be,  in  possession  of  any  lands,  tenements  or  hereditaments  what- 
knawn°boun-    soever,  under  titles  derived  from  sales,  made  either  by  creditors, 
daries,  to  be  a  executors  or  administrators  of  any  person  deceased,  or  by  husbands 
bar  to  the  State,  gj^^  their  wives,  or  by  endorsement  of  patents  or  other  colorable 
title,  for  the   space  of  twentyone  years,  all  such  possessions  of 
lands,  tenements  or  hereditaments,  under  such  title,  shall  be  and 
are  hereby  ratified,  confirmed  and  declared  to  be  a  good  and  legal 
bar,  against  the  entry  of  any  person  or  persons,  under  the  right  or 
claim  of  the   State,  to  all  intents  and  purposes  whatsoever  :  Pro- 
vided  nevertheless,  that  the  possession  so  set  up  shall  have  been 
ascertained  and  identified  under  known  and  visible  lines  or  boun- 
daries. 
Time  within         3.  All  actions  of  trespass,  detinue,  actions  sur  trover  and  reple- 
Tctions  mus°Te  ^^"  ^^^  taking  away  of  goods  and  chattels,  all  actions  of  account  and 
brought.  upon  the  case,  all  actions  of  debt  for  arrearages  of  rent,  all  actions 

2.  1791,  c.  34G. 

3.  1715,  c  2,  s.  5.— 1814,  C  879. 


Chap.  LXV.]  limitations.  373 

of  debt  grounded  upon  any  lending  or  contract  without  speciality, 
and  all  actions  of  assault,  menace,  battery,  wounding  and  imprison- 
ment, or  any  of  them,  which  shall  be  sued  or  brought,  shall  be 
commenced  or  brought  within  the  time  and  limitation  in  this  act 
expressed,  and  not  after  ;  that  is  to  say,  actions  of  account  render, 
actions  upon  the  case,  actions  of  debt  for  arrearages  of  rent, 
actions  of  debt  upon  simple  contract,  actions  of  detinue,  replevin, 
and  trespass  either  for  goods  and  chattels  or  quare  clausum  /regit, 
within  three  years  next  after  the  cause  of  such  action  or  suit,  and 
not  after  ;  except  such  accompts  as  concern  the  trade  of  merchan- 
dise, between  merchant  and  merchant,  and  their  factors,  or  ser- 
vants ;  and  the  said  actions  of  trespass  of  assault  and  battery, 
wounding,  imprisonment  or  any  of  them  within  one  year  after  the 
cause  of  such  action  or  suit  and  not  after  ;  and  the  said  actions 
upon  the  case  for  words,  within  six  months  after  the  words  spoken, 

and  not  after. 

4.   Provided  nevertheless,  that  if,  on  any  of  the  said  actions  or  Provi^so m^cases 
suits,  judgment  be  given  for  the  plaintiff,  and  the  same  be  reversed  errw  or%ever- 
by  error,  or  a  verdict  pass  for  the  plaintiff,  and  upon  matter  alleged  ^l^of  judg- 
in  arrest  of  judgment,  the  judgment  be  given  against  the  plaintiff,  "'^''• 
that  he  take  nothing  by  his  plaint,  writ  or  bill  ;  or  if  any  of  the 
said  actions  shall  be  brought  by  original  writ,  and  the  defendant 
cannot  be  attached  or  legally  served  with  process,  in  all  such  cases 
the  party  plaintiff,  his  heirs,  executors  or  administrators,   as  the 
case  shall  require,  may  commence  a  new  action  or  suit,  from  time 
to  time,  within  a  year  after  such  judgment  reversed,  or  such  judg- 
ment given  against  the  plaintiff,  or  till  the  defendant  can  be  attached 
or  served  with  the  process,  so  as  to  compel  him  to  appear  and  an- 
swer.     And  provided  further,  that  if  any  person  or  persons,  that  Proviso  for 
is  or  shall  be  entitled  to  any  such  action  of  trespass,  detinue,  action  i'^^'^.f  |g™'^ 
sur  trover,  replevin,  actions  of  accompt  and  upon  the  case,  actions 
of  debt  for  arrearages  of  rent,  actions  of  debt  grounded  upon  any 
lending  or  contract  without  specialty,  actions  of  assault,   menace, 
battery,  wounding  and   imprisonment,    actions   of  trespass   quare 
clausum  /regit,  actions  upon  the  case  for  slanderous  words,  be,  or 
shall  be,  at  the  time  of  any  such  cause  of  action  given  or  accrued, 
fallen  or  come,  within  the  age  of  twentyone  years,  feme  covert,  non 
compos  mentis,  imprisoned  or  beyond  the  seas,  then  such  person 
or  persons  shall  be  at  liberty  to  bring  the  same  actions,  so  as  they 
bring  the  same  within  such  times  as  are  before  limited,  after  their 
coming  to  or  being  of  full  age,    discovert,   of  sound  memory,  at 
large  or  returned  from  beyond  seas,   as   other  persons  having  no 
such  impediment  might  have  done.      And  provided  further,  that  Proviso  when 
when  any  person  or  persons,  against  whom  there  is  cause  of  action,  fhedrfendant  is 
shall  be  beyond  sea  at  the  time  of  such  cause  of  action   given  or 
accrued,  fallen  or  come,  the  person,  who  shall  have  such  cause  of 
action,  may  bring  his  action  against  them  within  such  time  or  times, 
as  are  herein  before  limited,  for  bringing  such  actions  after  their 
return. 

4.   1715,  c.  2,  s.  6  and  9.— 1814,  C.  879—1804,  c   6G7, 


374  LIMITATIONS.  [Chap.  LXV. 

This  act  to  ap-  5.  The  limitation  of  actions  shall  apply  to  all  bonds,  bills,  and 
after°eiidorse-*'  Other  securities  made  transferable  by  law,  after  the  assignment  or 
ment,  in  like  endorsement  thereof,  in  the  same  manner  as  it  operates  against 
promfssorV"     promissory  notes. 

notes.  6.  All  actions   and  suits  to  be   brought  on  any  penal  act  of  the 

Time  within     General  Assembly,  for  the   recovery  of  the  penalty  therein   set 

actions  must  be  forth,  sball  be  brought  within  three  years  after  the  cause  of  such 

brought.  action  or  suit  shall  or  may  have  accrued,  and  not  after  :   Provided, 

that  this  act  shall  not  affect  the  time  of  bringing  suit  on  any  penal 

act  of  the  General  Assembly,    which  hath  a  time  limited  therein 

for  bringing  the  same. 

Sureties  to  7.   If  any  Orphan,  coming   to  the  age  of  twentyone  years,  does 

foTe  d^-  °^  ^  J^ot  call  on  his  or  her  guardian  within  three  years  from  thence,  for 

charged  after    a  full  settlement  of  his  guardianship,  the  securities  of  such  guardian 

from  tlTtime    shall  be  discharged  from  their  securityship,  in  as  full  and  am})le 

the  orphan        manner  as  if  such  security  had  not  been  bound  :  Provided,  that 

comes  o  age.    jjQ(.j^j|^g  j^j  ^]^jg  gection  shall  extend  to  persons  imprisoned,  beyond 

the  seas,  or  non  compos  mentis,   so  that  they  bring  their  action 

within  three  years  after  such  disability  be  removed. 

Suits  on  the  8.  All  suits  on   the  bonds  of  sheriffs,   constables,  clerks  of  the 

iiS^  constables  Superior  courts  of  law,  clerks  and  masters  in  equity,  and  clerks  of 

clerks,  and       the  courts  of  plcas  and  quarter   sessions,  shall  be  commenced  and 

masters"  to  be  prosecuted,   within  six  years  after  the  right  of  action  shall  have 

brought  within  accrued,   and  not  afterwards;  saving,  nevertheless,  the  rights  of 

SIX  years.         infants,  femes  covert,  and  persons  non  compos  mentis,  so  that  they 

sue  within  three  years  after  their  disabilities  are  removed. 
Fees  due  to  9.   All  fees,  which  now   are,  or  hereafter  may  become  due  to 

clerks,  sheriffs,  ^j^g  cigj.}^  Qf  gny  court  of  rccord  within  this  State,  or  to  any  sheriff, 

&c.  to  be  col-  1  Tv-  1  -11  p 

lected  within    or  any  Other  oiiicer,  by  sentence,  judgment  or  decree  oi  any  court 
three  years.      aforesaid,  shall  be  collected,    or  suit  commenced  therefor,  within 
three  years  from  the  time  of  such  judgment  rendered  without  an 
execution  issued  thereon,  or  within  three  years  from  the  issuing  of 
the  last  execution,  and  not  after :   Provided  nevertheless,  that  this 
section  shall  not  extend  to  fees  which  may  be  due  and  owing  from 
persons  residing  out  of  this  State. 
Actions  on  jus-      10.   All   actions  of  debt,  grounded  upon  the  judgment  of  a 
tices'judg-       justice  of  the  peace,  shall  be  commenced  or  brought  within  seven 
brought  within  years  next  after  the  rendition  of  such  judgment  or  the  teste  of  the 
seven  years,      jgg^  execution,  lawfully  issuing  on  the  same,  and  not  after  :   Pro- 
vided nevertheless,  that  if  any  person  or  persons,  that  is  or  shall  be 
entitled  to  any  action  of  debt  upon  such  justice's  judgment,  shall 
be,  at  the  rendition  of  such  judgment  or  teste  of  the  last  execu- 
tion lawfully  issuing  on   the  same,  within   the  age   of  tw^entyone 
years,  feme  covert,   non  compos  mentis,  or  beyond   sea,  that  then 
such  person  or  persons  shall  be  at  liberty  to  bring  said  action, 
within  three  years  after  arriving  at  full  age,  discoverture,  or  coming 
of  sound  mind,  or  returning  from  beyond  sea. 

5.  1786,  c.  243,  s.  5. 

6.  1808,  c.  743. 

7.  1795,  c.  443. 

8.  1810,  c.  800.— 1826,  c.  32.— 1828,  C.  43. 

9.  ISll,  c.  822.  -^.^ 
10.  182.5,0.  1296,  s.  1  and  2. 


Chap.  LXV.]  limitations.  375 

11.  Creditors  of  any  person   deceased,  shall  make  their  claim  Creditors  must 
within  seven  years  after  the  death  of  such  debtor,  otherwise  such^l'^i'"  within 

J  '  SGVGn  VG3.rs 

creditor  shall  be  forever  barred.  from  the  death 

12.  The  creditor  or  creditors  of  any  person  deceased,  if  he  or  °f '•^^^'i^^^°''i 

•  •  /»  •        or  DG  lorcvGr 

they  reside  within  this  State,  shall  within  two  years,  and  if  they  reside  barred. 
without  the  limits  of  this  State,  shall  within  three  years  from  the  Within  what 
qualification  of  the  executors  or  administrators,  exhibit  and  "^^ke  ^™ j.g|}^^^y^''^^ 
demand  of  their  respective  accounts,   debts   and  claims  of  every  executors  or  ad- 
kind  whatsoever,   to  such  executors   or  administrators  ;  and  if  any  ^^^^^^'^^^^^^'^^ 
creditor  or  creditors  shall  hereafter  fail  to  demand  and  bring  suit  present  their 
for  the  recovery  of  his,  her  or  their  debt  as  above  specified,  within  ^  ^""^' 
the   aforesaid  limited  time,  he,  she  or  they  shall  forever  be  barred 
Irom  the  recovery  of  his,  her  or  their  debt,  in  any  court  of  law 
and  equity,  or  before  any  justice  of  the  peace   within  this  State  : 
Provided,  that  nothing   in   this  act  shall  extend  to   debar  infants,  Pi'o^iso  for 
persons  non  compos   or  femes  covert  to  bring  their  several  actions 
after  the  expiration  of  the  term  above  mentioned  :  Provided,  such 
action  be  brought  within  one  year  after  the  coming  to  lawful  age, 
sound  mind  or  discoverture  of  such  persons  :  Provided  also,  that  ifthedel°a7is^at 
any  creditor,  after  making  demand  of  his  debt  or  claim,  shall  delay  the  request  of 
to  bring  suit  at  the  special  request  of  the  executors  or  administra-  ^f..  ^      °^' 
tors,  then  and  in  that  case  the  said   debt  or  demand  shall  not  be 
barred  during  the  time  of  their  indulgence  :  Jlnd  provided  also.  Executor,  &c. 

.  must  nsvG  3,q- 

that  the  executor  or  administrator  shall  have  advertised,  within  the  vertised. 
time  and  in  the  manner  prescribed  by  law. 

13.  The  presumption   of  payment  or  satisfaction  on  all  judg- '^™^y^'^^^'^ 
ments,  contracts  and  agreements  heretofore  had  or  made,  or  here-  sumption  of 
after  to  be  had  or  made,  shall  arise  within  ten  years  after  the  right  [udSnents"  &c 
of  action  on  the  same  shall  have  accrued,   or  shall  accrue,  under  may  arise.' 
the  same  rules,  regulations  and  restrictions  as  now  exist  at  law  in 

such  cases. 

14.  The  presumption  of  payment,  or  abandonment  of  the  right  Time  within 
of  redemption  on  mortgages  and  of  other  equitable  interests,  shall  ^mption^of 
arise  within  ten  years  after  the  forfeiture  of  said  mortgage  or  last  satisfacuon  of 
payment  on  the  same,  or  the  right  of  action  shall  have  accrued  or  shall  may  arfsT.' 
accrue  on  any  equitable  interest  or  claim,  under  the  hke-rules,  regula- 
tions and  restrictions :  Provided,  that  when  the  right  of  action  or  claim 

on  any  judgment,  contract,  agreement,  mortgage,  or  other  equita- 
ble interest,  heretofore  had  or  made,  accrued  more  than  ten  years 
ago,  the  presumption  of  payment,  satisfaction  or  abandonment  of 
the  claim  or  right,  shall  arise  within  thirteen  years  from  the  accrual 
of  the  right  of  action  on  the  same,  under  the  like  rules,  regulations 
and  restrictions. 

1 5.  No  scire  facias  shall  be  sued  out  or  prosecuted  against  the  bail  whTchTl^re 
of  a  defendant  to  any  judgment  or  final   decree,   now  existing  in /a«as  against 
any  court,  but  within  four  years  from   the  rendition  of  such  judg- j'^^^g^gi^^r 
ment,  or  the  entering  of  such  final  decree.  decree  now  ex- 

isting  must  be 


sued  out. 


11. 

1715,  c.  10,  s.  7.— 1799,  C 

12. 

1789,  c.  308,  s.  4  and  5. 

13. 

1826,  c.  28,  s.  1. 

14. 

1S26,  c.  28,  s.  2. 

15. 

1831,  c.  18,  s.  1. 

536,  s.  1. 


376  LIMITATIONS.  [Chap.  LXV. 

Time  within  16.  No  scire  facitts  shall  be  sued  out  or  prosecuted  against  the 

/Lt'os  againTt    ^^^^  of  any  defendant  to  any  writ,  or  action,  or  suit,  now  pending, 
"bailin  any  suit  or  hereafter  to  be  brought  in  any  of  the   courts  in  this  State,  but 
Wa^ftefto^r^^^^^^"^  fo"''"  years  after  the  rendition  of  a  final  judgment,  or  the  en- 
brought  must    tering  of  a  final  decree  in  the  action  or   suit  to  which  bail  is  or 
e  sue   out.      ^j^^jj  ^^  given  :   Provided  however,  that  if  the  plaintiff  in  the  ac- 
Proviso  w^re  ^jqjj  qj.  g^j^^  aforesaid  shall  marry  or  die,  after  a  judgment  has  been 
marries  ordies  rendered  or  a  final  decree  entered,  and  it  shall  therefore  become 
after  judgment.  j^gj.ggggj.y  for  his  or  her  representative  or  husband  to  be  made  a 
party  to  said  judgment  or  decree,  before  execution  thereon  can  be 
had,  or  if  the  plaintiff  to  any  judgment  or  decree,  now  existing, 
be  dead   or  married,   and  thereby  a  like  necessity  is  created,  the 
time  which  elapses  during  the  pendency  of  the  proceedings  that 
may  be  had  to  revive  the   said  judgment  or  decree,  shall  not  be 
Pravisofor       reckoned  :  Provided,  nevertheless,  that  if  any  person  that  is  plain- 
m  ants,  &c.      ^jg-  j^^  ^^^  judgment  or  decree,  already  rendered  in  any  court  of 
this  State,  shall  be  now  an  infant  under  the  age  of  twentyone  years, 
a  feme  covert,  non  compos  mentis,  imprisoned  or  beyond  seas,  then 
such  person  shall  be  at  liberty  to   sue   out  and  prosecute   a  scire 
facias  upon  the  bail  bond  aforesaid,  if  he  or  she  sue  out  the  same, 
within  four  years  after  his  or  her  coming  to   or  being  of  full  age, 
discovert,  of  sound  memory,  at  large,   or  returned  from  beyond 
seas  ;  and  that  if  any  person,  that  shall  be  a  plaintiff  in  any  judg- 
ment or  decree,  that  shall  be  hereafter  rendered,  be  at  the  time  of 
rendering  the  said  judgment  or  entering   up  the  decree,  an  infant 
under  the  age  of  twentyone  years,  a.  feme  covert,  non  compos  men- 
tis, imprisoned  or  beyond  seas,   then  such  person  or  persons  shall 
be  at  liberty  to  sue  out  and  prosecute  a  scire  facias  upon  the  bail 
bond  aforesaid,  if  he,  she  or  they  sue  out  the  same,  within  four  years 
after  his,  her  or  their    coming  to  or  being  of  full  age,  discovert, 
of  sound  memory,  at  large,  or  returned  from  beyond  seas. 
Time  not  to  be      17.   If  the  plaintiff  shall  sue  out  his  scire  facias  upon  the  bail 
case^ornon-     bond  as  aforesaid,  and  shall  be  therein  nonsuited,  or  obtain  judg- 
suit,  arrest  of    nient  against  the  bail,  and  such  judgment   shall  be  arrested  or  re- 
versal for'e7ror'  versed  for  error,  the   time   which   elapses  from  the  day  of  issuing 
such  scire  facias,  to  the  nonsuit,  or  arrest  of  judgment,  or  reversal 
for  error,  shall  not  be  reckoned  under  this  act. 
Adverse  pos-         jg_   Whenever  any  person  or  persons  shall  remain  in  the  posses- 


session 


slave  for  three  sion  of  a  slave  or  slaves,  until  such  possession  is  protected  by  the 
years  to  give  statute  of  limitations,  the  person  or  persons,  so  in  possession,  and 
those  claiming  under  them,  shall  be  deemed  and  held  to  have  a 
good  and  absolute  title  to  such  slave  or  slaves,  against  all  persons 
Proviso  as  to  whose  claim  is  barred  by  the  said  statute  :  Provided,  that  nothing 
paro  gi  ts.       herein  contained  shall  in  any  way  affect  the  law  now  in  force,  that 

requires  all  gifts  of  slaves  to  be  by  deed  of  gift. 
Mortgage  of  19.  Whenever  any  mortgagor  or  mortgagors  in  any  mortgage  of 

mus°be^e-^^^'^  P®^'^°"^^   property,  executed  since  the  year  one  thousand  eight 
deemed  within  hundred  and   thirty,  or  hereafter  to  be   executed,  or  his,   her  or 

two  years  after 

forfeiture. 

16.  1S31,  C.  18,  s.  2. 

17.  1831,  c.  18,  s.  3. 

18.  1820,  c.  1055. 

19.  1830,  c.  38. 


Chap.  LXV.]  limitations.  377 

their  legal  representative  or  representatives,  shall  fail  to  perform 
the  conditions  of  the  mortgage,  for  the  space  of  two  years  from 
the  time  of  performance  specified  in  the  mortgage,  and  shall  omit 
to  file  a  bill  in  equity,  claiming  his,  her  or  their  equitable  right  to 
redeem  such  personal  property,  for  the  space  of  two  years  after 
the  forfeiture  of  the  conditions  of  the  mortgage,  he,  she  or  they 
shall  be  held  and  deemed  forever  barred  of  all  claim  in  equity  to 
the  personal  property  mortgaged  as  aforesaid  :  Provided  neverthe-  Proviso,  that 
less,  that  nothing  herein  contained  shall  be  construed  to  prevent  any  may  liil  their 
mortgagee  or  mortgagees  from  filing  his,  her  or  their  bill  in  equity,  Y^^  "^^  ^°^^' 
to  foreclose  any  such  mortgage,  at  any  time  after  the  forfeiture  o f  time  after  for- 
the  conditions  specified  in  the  mortgage  :  Jlnd  provided  further,  jeiture. 
that  if  any  such  mortgagor  or  mortgagors  shall  become  lunatic,  or  mortgagors  b. 
nan  compos  mentis,  or  removed  beyond  seas,  he,  she  or  they  shall  ^''""'S  lunatl 
be  allowed  the  further  time  of  one  year  from  the  removal  of  such 
disabihty,  within  which  he,   she  or  they,  or  his,  her  or  their  legal 
representative  or  representatives,  may  assert  in  equity  his,   her  or 
their  right  to  redemption. 


Note.  —  References  to  Adjitdged  Cases. 

Sect.  1.  Slade  rs.  Smith,  1  Hay.  248.  Andrews  »s.  Mulford,  ib.  311.  Borritz  »s. 
Turner,  Tayl.  112.  Cobham  »s.  Ashe,  ib.  123.  Grantus.  Windburn,  2  Hay.  56.  Armor 
vs.  White,  lb.  69  and  87.  Anon.  ib.  76.  Pendar  vs.  Jones,  ib.  294.  Evans  vs.  Satter- 
field,  1  Murph.  413.  Hill  vs.  Wilton,  2  Murph.  14.  Whitlock  vs.  Walton,  ib.  23.  Jones 
vs.  Ridley,  2  Car.  Rep.  397.  Baker  vs.  Evans,  ib.  614.  University  vs.  Blount,  N.  C. 
Term.  R.  13.  Benton  iJS.  Murphy,  ib.  259.  Hamilton  vs.  Shepperd,  3  Murph.  115. 
Reddiek  vs.  Legget,  ib.  539.  Jones  vs.  Putney,  ib.  562.  Thompson  vs.  Blair,  ib.  583. 
Orbinson  vs.  Morrison,  1  Hawks,  467.  Campbell  vs.  McArthur,  2  Hawks,  33.  Church 
vs.  Academy,  ib.  233.  Tate  vs.  Southard,  3  Hawks,  119.  Gilliam  vs.  Jacocks,  4 
Hawks,  310.  Earle  vs.  Dickson,  1  Dev.  16.  McRee  vs.  Alexander,  1  Dev.  321.  Blair 
vs.  Miller,  2  Dev.  407.  Benzein  vs.  Robinett,  1  Dev.  Eq.  444.  Hoyle  vs.  Logan,  4 
Dev.  495.  Burton  vs.  Carruth,  1  Dev.  and  Bat.  2.  Spencer  vs.  Weston,  ib.  213. 
Gwynn  vs.  Welborn,  ib.  313.  Carson  vs.  Mills,  ib.  546.  Dobson  vs.  Murphy,  ib.  586. 
Edwards  z;s.  the  University,  1  Dev.  and  Bat.  Eq.  325. 

Sect.  2.  Clinton  vs.  Herring,  1  Murph.  414.  Tate  vs.  Southard,  1  Hawks,  45. 
Graham  vs.  Houston,  4  Dev.  232. 

Sect.  3.  Billews  ?;s.  Bogan,  1  Hay.  13.  Berry  vs.  Pulliam,  ib.  16.  Fergerson  tjs. 
Taylor,  ib.  20.  McNaughton  vs.  Norris,  ib.  216.  Anon.  ib.  243.  Elmore  vs.  Mills,  ib. 
359.  Toomer  vs.  Long,  2  Hay.  18.  Newsom  vs.  Person,  ib.  242.  Pitman  vs.  Casey, 
ib.  293.  Vance  vs.  Granger,  Conf.  71.  Colking  1)5.  Thaxter,  ib.  93.  Murphy  »s.  Gui- 
on,  2  Murph.  238.  Killiam  vs.  Watt,  3  Murpli.  167.  Vass  iJS.  Hicks,  ib.  493.  Ri- 
den  vs.  Trion,  ib.  577.  Murray  vs.  Smith,  1  Hawks,  40.  Walker  vs.  Campbell,  ib. 
304.  Mclntire  vs.  Oliver,  2  Hawks,  209.  Bank  of  Newbern  ps.  Sneed,  3  Hawks,  500. 
Peebles  vs.  Mason,  2  Dev.  367.  Morrison  vs.  Morrison,  3  Dev.  402.  Ballenger  vs. 
Barns,  ib.  460-  Collier  vs.  Poe,  1  Dev.  Eq.  55.  Wagstaff  vs.  Smith,  2  Dev.  Eq.  264. 
Armstrong  »s.  Dalton,  4  Dev.  568.  Sherrod  vs.  Woodard,  ib.  360.  White  i)s.  White, 
1  Dev  and  Bat.  260.  Gattling  vs.  Darden,  1  Dev.  and  Bat.  Eq.  72.  Green  vs.  Cald- 
cleugh,  1  Dev.  and  Bat.  320.    Swink  vs.  Fort,  2  Dev.  and  Bat.     Alston  vs.  Hamlin,  ib. 

Sect.  4.  Anon.  1  Hay.  416.  Anon.  2  Hay.  63.  Skillington  vs.  Allison,  2  Hawks, 
347.  Davis  vs.  Cook,  3  Hawks.  608.  Earle  vs.  Dickson,  1  Dev.  16.  Morrison  vs. 
Conelly,  2  Dev.  233. 

Sect.  5.     Phifer  vs.  Giles,  2  Dev.  498. 

.Sect.  6.     Clark  vs.  Rutherford,  3  Murph.  237. 

Sect.  7.     Johnson  vs.  Taylor,  1  Hawks,  271. 

Sect.  8.  Governor  vs.  Franklin,  3  Murph.  213.  Governor  vs.  Hanrahan,  4  Hawks, 
44.     Governor  vs.  Munroe,  4  Dev.  412. 

Sect.  U.  Neil  vs:  Hosmer,  1  Murph.  202.  Alexander  vs.  Alexander,  1  Car.  Rep. 
273.  Jones  TO.  Brodie,  3  Murph.  594.  Mclntire  vs.  Carson.  2  Hawks,  544.  Rayner 
vs.  Watford,  2  Dev.  338.  Godley  vs.  Taylor,  3  Dev.  178.  Cook  vs.  Streeter,  1  Dev. 
Eq.  324.     Baily  vs.  Shannonhouse,  ib.  416. 

Sect.  12.  Bond  vs.  Allen,  Martin,  83.  Hallowell  vs.  Pope,  2  Murph.  103.  Good- 
man vs.  Smith,  4  Dev.  450. 

Sect.  19.  Palmer  vs.  Faucett,  2  Dev.  240.  Peterson  vs.  Williamson,  ib.  326. 
Freeman  vs.  Perry,  2  Dev.  Eq.  243.  Hill  vs.  Hughes,  1  Dev.  and  Bat.  336.  Powell  I's. 
Powell,  1  Dev.  and  Bat.  349. 

VOL.  I.  48  ' 


378 


LITERARY   FUND.  [ChAP.  LXVI. 


CHAPTER  66. 


L.ITERARY    FUND. 


AN  ACT  TO  CREATE  A  FUND  FOR  THE  ESTABLISHMENT   OF  COM- 
MON SCHOOLS. 


Section 

1.  Of  what  materials  the  fund  for  the 

support  of  common  schools  is  to 
consist. 

2.  The  fund  vested  in  a  corporation,  and 

who  shall  compose  the  corporation. 
(Amended  by  the  act  of  1836.  See 
infra  chap.  67.) 


Section 

3.  The  board  may  vest  the  fund  in  any 

of  the  banks  of  the  State,  &c. 

4.  The  fund  to  be  applied  to  the  instruc- 

tion of  such  children  as  the  legisla- 
ture may  deem  expedient. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
Of  what  mate- That  a  fund,  for  the  support  of  common  and  convenient  schools 
for  the  support  ^^^  t^B  instruction  of  youth,  in  the  several  counties  of  this  State,  be 
of  common  and  the  same  is  hereby  appropriated,  consistine  of  the  dividends 
consist.  arising  from  the  stock,  now  held  and  which  may  hereafter  be  ac- 

quired by  the  State,  in  the  banks  of  Newbern  and  Cape  Fear,  and 
which  have  not  heretofore  been  pledged  and  set  apart  for  internal 
improvement,  the  dividends  arising  from  stock,  which  is  owned  by 
the    State,   in  the  Cape  Fear  Navigation  Company,  the  Roanoke 
Navigation  Company,  and  the  Club  Foot  and  Harlow's  Creek  Ca- 
nal Company,  the  tax  imposed  by  law  on  licenses  to  retailers  of 
spirituous  hquors  and  auctioneers,  the  unexpended  balance  of  the 
agricultural  fund,  which  by  the  act  of  the  legislature  is  directed  to 
be  paid  into  the  public  treasury,  all  moneys  paid  to  the  State  for 
entries  of  vacant  lands,  (excepting  the  Cherokee  lands,)  the  sum  of 
twentyone  thousand  and  ninety  dollars  which  was  paid  by  this  State 
to   certain  Cherokee  Indians  for  reservations  to  land  secured  to 
them  by  treaty,  and  of  all  the  vacant  and  unappropriated  swamp 
lands  in  this  State,  together  with  such  sums  of  money  as  the  legis- 
lature may  hereafter  find  it  convenient  to  appropriate  from  time  to 
time. 
The  fund  vest-      ^'   ^^^  sums  of  money,  which  have  accrued  since  the  first  day 
ed  in  a  corpo-    of  November,   one  thousand  eight  hundred  and  twentyfive,  and 
shaTl"compoTe   "^^^  Constitute  the  literary  fund,  or  which  may  hereafter  accrue  as 
that  corpora-    aforesaid,  shall  be  and  the  same  are  hereby  vested  in  the  governor 
(Amended  by    of  the  State,  the  chief  justice  of  the  supreme  court,  the  speaker  of 
an  act  passed    the  senate,  the  speaker  of  the  house  of  commons,  and  the  treasurer 
irifmch.^v.T7.)  ^^  ^he  State,  for  the  time  being,  and  they  and  their  successors  in 
office  are  hereby  constituted  a  body  corporate  and  politic,  under 


1.  1825,  c.  1268,  s.  1, 

2.  1825,  c  1268,  s.  2. 


Chap.  LXVIL]       literary  fund. 


379 


the  name  of  "  The  President  and  Directors  of  the  Literary  Fund," 
with  power  to  sue  and  be  sued,  plead  and  be  impleaded,  and  to 
hold  real  and  personal  property,  and  to  sell,  dispose  of  and  im- 
prove the  same  to  effect  the  purposes  of  promoting  learning,  and 
the  instruction  of  youth.  The  governor  shall  be  president  of  the 
board,  and  any  three  of  the  directors  shall  constitute  a  quorum  for 
the  transaction  of  business  relative  to  the  said  fund,  and  in  the  ab- 
sence of  the  governor  they  shall  have  power  to  appoint  a  president 
for  the  time  of  such  absence.  They  shall  cause  to  be  kept,  by  the 
treasurer  of  the  State,  a  regular  account  of  all  such  sums  of  money 
as  may  belong  to  the  said  fund,  the  manner  in  which  the  same  has 
been  applied  and  vested,  and  they  shall  make  a  report  thereof  to 
the  legislature  with  such  recommendations  for  the  improvement  of 
the  same  as  to  them  shall  seem  expedient. 

3.  The  president  and  directors  of  the  fund,  hereby  created,  are  The  board  may 
authorized  to  vest  any  part  or  the  whole  of  the  said  fund  in  the  in  any  of  the 
stock  of  any  of  the  banks  of  this  State  or  of  the  United  States,  or  banks  of  the 
in  the   stock  of  the  government  of  the  United  States,  and  at  all        ' 
times  to  change,  alter  and  dispose  of  the  same,  and  of  any  real  or 
personal  estate  belonging  to  the  said  fund,  in  such  manner  and  up- 
on such  terms,  as  may,  in  their  opinion,  be  best  calculated  to  im- 
prove the  value  thereof. 

4.  The  fund  hereby  created  shall  be  applied  to  the  instruction SieXfoThe^ 
of  such  children,  as  it  may  hereafter  be  deemed  expedient  by  the  instruction  of 
legislature  to  instruct  in  the  common  principles  of  reading,  writing  as^the  legisk- 
and  arithmetic  ;  and  whenever  in  the  opinion  of  the  legislature  the  ture  niay  deem 
said  fund  shall  have  sufficiently  accumulated,  the  proceeds  thereof  ^^P^"^^^"^^' 
shall  be  divided  among  the  several  counties,  in  proportion  to  the 

free  white  population  of  each,  to  be  managed  and  applied  in  such 
way  as  the  legislature  shall  hereafter  authorize  and  direct. 


4.   1825,  C.  1263,  s.  4. 


/Of/,.).      (>L 


/  6 


CHAPTER  67. 


AN  ACT  TO  DRAIN  THE  SWAMP  LANDS  OF  THIS  STATE  AND   TO 
CREATE  A  FUND  FOR  COMMON  SCHOOLS. 


Section 

1 .  Board  of  literature  to  be  established 

— Its  style. 

2.  Governor  to  be  president  of  the  board 

and  to  appoint  the  members. 

3.  Swamp  lands  vested  in  said  board. 

4.  Other  property  and  funds  vested  in 

said  corporation. 

5.  Duty  of  the  board  in    having  the 


Section 

swamp   lands   surveyed,    drained, 
&c. 

6.  Written  consent  of  individuals  to  be 

sufficient  to  vest  titles  in  said  cor- 
poration. 

7.  When  owners  of  land  refuse   their 

consent,  what  may  be  done  by  said 
corporation. 


380 


LITERARY   FUND.  [ChAP.  LXVII. 


Section 

8.  Lands  of  individuals,  improved  by  ca- 

nals, &c.  to  pay  a  proportion  of  the 
costs. 

9.  Board  to  appoint  an   engineer  and 

surveyor,  and  may  adopt  rules  for 
surveying,  assessing,  &c. 
10.  Said  corporation  may  enter  upon  any 
lands  for  the  purpose  of  surveying. 


Section 

11.  Said  corporation  may  sell  reclaimed 

lands. 

12.  What  money,  &c.  said  corporation 

shall  not  expend. 

13.  Tv(ro  hundred  thousand  dollars  ap- 

propriated to  their  use. 

14.  What  other  rights  and  powers   said 

corporation  shall  have. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  there  shall  be  a  board  of  literature  in  this  State,  to  be  de- 
nominated and  called  by  the  name  of  "  The  President  and  Direc- 
tors of  the  Literary  Fund  of  North  Carolina  ;"  and  by  that  name 
they  are  incorporated  into  a  body  politic  and  corporate,  and  shall 
be  capable  of  suing  in  any  court  of  record  in  this  State. 

2.  The  governor  of  this  State,  by  virtue  of  his  office,  shall  be 
the  president  of  the  said  board  ;  and  there  shall  be  three  other 
members  of  the  said  board,  biennially  nominated  and  appointed  as 
such  by  the  governor  of  this  State,  under  and  with  the  advice  of 
his  council  ;  but  in  case  a  vacancy  occurs,  the  same  shall  be  filled 
by  the  other  members  of  the  board. 

3.  All  the  swamp  lands  of  this  State,  not  heretofore  duly  en- 
tered and  granted  to  individuals,  shall  be  vested  in  the  said  cor- 
poration and  successors,  in  trust  as  a  public  fund  for  education  and 
the  establishment  of  common  schools. 

Other  property      4.   In   addition  to  the  said  lands,   the 

edln'said  1©^  ^^^^^^  ^^'^^^^  ^^  vcsted  in   said  corporation,   and  their 


Board  of  lit- 
erature to  be 
established  — 
Its  style. 


Swamp  lands 
vested  in  said 
board. 


following  property  and 
successors 


po  ration. 


in  trust  as  aforesaid,  to  wit :  all  the  shares  of  stock  owned  by  the 
State,  in  the  bank  of  the  State  of  North  Carolina,  excepting  one 
thousand  shares,  together  with  all  the  shares  of  stock  now  held  in 
said  bank,  in  the  name  of  the  president  and  directors  of  the  lite- 
rary fund,  making  in  all  five  thousand  shares  ;  and  also  five  thou- 
sand shares  of  stock  in  the  capital  of  the  bank  of  Cape  Fear,  and 
the  profits  and  dividends  arising  from  said  stock  ;  which  profits 
shall  be  reinvested  by  the  said  president  and  directors,  from  time 
to  time  as  they  accrue,  for  the  use  of  said  fund,  as  they  may  judge 
best  ;  subject,  however,  at  all  times  to  the  direction  and  control 
of  the  General  Assembly. 
Duty  of  the  5.  The  said  president  and  directors  of  the  literary  fund  shall  be 

thrswamp^^"^  and  they  are  hereby  invested  with  full  power  and  authority  to 
lands  surveyed,  adopt  all  neccssary  ways  and  means,  for  causing  so  much  of  the 
swamp  lands  aforesaid  to  be  surveyed,  as  they  may  think  capable 
of  being  reclaimed  ;  and  after  the  said  lands  or  any  part  of  them 
shall  be  surveyed,  to  contract  with  one  or  more  persons  to  con- 
struct canals,  ditches  and  other  works,  necessary  for  the  purpose 
of  reclaiming  the  said  lands,  upon  such  terms  and  conditions  as 
may  be  prescribed  by  the  said  corporation  ;  the  contractor  or  con- 
tractors in  each  case  giving  bond  and  security  for  the  faithful  per- 
formance of  the  agreement. 


drained,  &c. 


1.  1836,  c.  23. 


Chap.  LXVII.]        literary  fund.  381 

6.  Whenever  it  shall  be  necessary  to  construct  any  of  the  ^^o^t^  Jnfof'indi'vid 
of  said  corporation  on  the  lands  of  any  individual  proprietor,  the  writ-  [^^^^  °^  ^"  ^'^j-. ' 
ten  consent  of  such  proprietor,  without  any  formal  deed  of  con- ficienuo^vest 
veyance,  for  the  lands   necessary  to  the  work  and  its  future  unre-  corporation, 
stricted  enjoyment,  shall  vest  the  title  thereof  in  the  said  corpora- 
tion forever  ;  and  when  any  infant,  or  person  non  compos  mentis,  or 

feme  covert  shall  be  owner  thereof,  the  guardian  of  such  infant  or 
person  non  compos  mentis  shall  be  and  he  is  hereby  authorized 
to  give  such  consent  ;  and  the  feme  covert  with  her  husband  may 
do  so,  without  any  separate  examination  ;  and  the  consent  so  given 
shall  in  either  case  be  good  and  valid  to  all  intents  and  purposes. 

7.  Whenever  the  consent  of  the  proprietor  aforesaid  shall  be  When^o™^ 
withheld  or  refused,  it  shall  be  lawful  for  the  said  corporation  or  their  consent, 
their  agents  to  enter  on  the  said  lands,  and  lay  off  so  much  of  the  ^Jf^'bTslid 
same  as  may  be  necessary  to  be   used  in  said  work,  the  value  ot  corporation, 
which  shall  be  assessed  to  the   proprietor  according  to  the  law  of 

the  land  ;  and  upon  the  payment  thereof,  the  title  of  said  land  shall 
be  vested  in  the  said  corporation  forever  :  Provided,  that  in  the 
assessment  of  said  valuation,  the  benefit  that  will  accrue  to  the 
proprietor,  by  reason  of  said  improvement,  may  be  likewise  reck- 
oned and  set  off  against  the  said  damages. 

8.  When  there  are  lands  owned  by  individuals,  which  can  be  Jands^f  in^ 
reclaimed  by  reason  of  the  canals,  ditches,  or  other  works  of  the  p^^^J'J^by  "''" 
said  corporation,  the  said  lands  owned  by  individuals,  shall  be  as-  canak,  &c.jo 
sessed  to  contribute  an   equitable   proportion  of  the  costs  of  said  ^^^^^  ^[^6°''" 
works  ;  which  assessment  shall  be  made  by  the  said  president  and  costs. 
directors,  or  by  a  board  of  commissioners  appointed  by  them  ;  and 
the  assessment  so  made  shall  be  charged  on  said  lands  :  Provided 
however,  that  the  said  corporation  may,  by  contract  with  individual 
proprietors  agree  upon  the  said  assessment,  and  accept  payment 
thereof  in  labor  or  money. 

9.   The  said  president  and  directors  shall  have  power  and  author-  Board  to  ap- 
ity  to  appoint  an  engineer,  and  surveyor  and  other  servants  under  P°^"/^^^yj^/;- 
them  to  plan  the  works  herein  contemplated,  upon  the  most  rea-  veyor,  and  may 
sonable  terras  on  which  they  can  be  procured,  and  they  may  enact  adop^tmks^^^^^ 
all  necessary  rules  and  regulations  for  surveying  and  reclaiming  the  sessing,  &c. 
swamp  lands  of  this  State,  or  any  of  them  ;  for  assessing  the  lands 
of  individuals  which  may  be  improved  by  the  works,  and  for  col- 
lecting said  assessments  ;  and  the  assessments  so  made  shall  be 
published  weekly  for  five  weeks  in  one  of  the  newspapers  publish- 
ed in  Raleigh,  and  also  filed  in  the  office  of  the  clerk  of  the  supe- 
rior court,  where  the  lands  assessed  are  situate  ;  and  if  no  objec- 
tions are  filed  at  the  court  next  after  such  advertisement,  the  said 
assessments   shall  be   confirmed  by  the   court,  and  the  lands  ad- 
judged liable  for  the  amount,  and  execution  may  be  issued  for  the 
sale  of  said  lands  to  satisfy  the  same,  on  motion   to  the  court  for 
that  purpose  ;  and  if  any  reasons  be  shewn  against  the  said  assess- 
ments, they  shall  be  heard  and  determined  by  the  said  court,  and 
the  said  assessments  shall  be  increased  or  diminished  as  the  court 
shall  adjudge  is  right. 

10.   The  said   corporation,  and  their  officers  or  agents,  shall  Said^or^pora-^ 


382 


LITERARY   FUND.        [ChaP.  LXVIII. 


upon  any  lands 
for  the  purpose 
of  surveying, 
&c. 


Said  corpora- 
tion may  sell 
reclaimed 
lands. 


What  money, 
&c.  said  corpo- 
ration shall  not 
expend. 

Two  hundred 
thousand  dol- 
lars appro- 
priated to  their 
use. 


What  other 
rights  and 
powers  said 
corporation 
shiill  have. 


have  a  right  to  enter  upon  the  lands  of  all  and  any  persons  whom- 
soever, for  the  purpose  of  surveying  ;  and  all  the  grants  and  deeds 
for  swamp  lands,  heretofore  made,  shall  be  proved  and  registered 
m  the  county,  where  such  lands  are  situate,  within  twelve  months  ; 
and  every  such  grant  or  deed,  not  being  so  registered  within  the 
time  aforesaid,  shall  be  utterly  void  and  of  no  effect,  and  the  title  of 
the  proprietor  in  said  lands,  shall  revert  to  the  State  of  North 
Carohna. 

11.  The  said  corporation  may  sell  and  convey  any.  part  of  the 
lands,  which  may  be  reclaimed,  for  the  best  price  that  can  be  ob- 
tained for  the  same  ;  and  the  title  of  the  purchaser  or  purchasers 
shall  be  good  and  vahd  in  law  and  equity.  But  the  corporation 
shall  not  sell  any  canal  by  them  constructed  under  this  act. 

12.  The  corporation  aforesaid  shall  not  expend  any  part  of  the 
moneys  and  stocks,  herein  before  vested  in  them  for  the  purpose  of 
reclaiming  the  said  lands. 

13.  Two  hundred  thousand  dollars  shall  be,  and  are  hereby  ap- 
propriated to  the  use  of  said  president  and  directors  ;  and  they 
have  power  to  expend  so  much  thereof,  in  reclaiming  the  swamp 
lands,  as  can  be  beneficially  apphed  to  that  object ;  and,  if  the 
same  shall  not  be  immediately  required,  the  said  president  and  di- 
rectors shall  have  power  to  loan  the  same,  on  short  credit  and  good 
security,  or  to  deposit  it  with  a  bank  or  banks,  at  a  reasonable  rate 
of  interest,  as  they  may  see  fit,  until  it  is  required  for  the  work 
herein  provided  for. 

14.  Besides  the  powers  herein  before  given,  the  said  presi- 
dent and  directors  are  invested  with  all  the  rights  and  powers  here- 
tofore belonging  to  the  president  and  directors  of  the  literary  fund 
of  this  State  ;  and  also  with  all  powers  and  authority  necessary 
and  proper  for  reclaiming  the  swamp  lands  of  this  State,  and  for 
obliging  the  owners  of  any  part  of  said  lands  to  contribute  an  equi- 
table share  of  the  expenses,  whenever  such^  owners  are  benefited 
by  the  work  of  the  company. 


CHAPTER  68. 


AN  ACT  TO  PROVIDE  FOR   DRAINING  THE   MATTAMUSKEET   LAKE. 


Section 

1 .  Governor  to  appoint   three  commis- 

sioners for  the  purpose  of  draining 
Mattamuskeet  lake. 

2.  Commissioners  to   locate   and  con- 

tract for  the  cutting  a  canal . 

3.  Reclaimed  land  not  to  be  entered. 

4.  Pay  of  the  commissioners. 


Section 

5.  Public  treasurer  to  pay   out  of  the 

literary  fund. 

6.  Commissioners  to  contract  with  indi- 

vidual proprietors  for  aid. 

7.  Commissioners  to  report,  &c. 

8.  Commissioners  to  give  bond. 


Chap.  LXVIIL]      literary  fund. 


383 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  Mrth 
Carolina,  and  it  is  hereby  enacted  by  the   authority  of  the  same,  Governor  to 
That  the  governor  of  this  State  be,  and  he  is  hereby  authorized  appoint  three 
and  empowered  to  appoint  three  commissioners,  who  shall  be  and^°™™/^ 
they  are  hereby  constituted  a  board  of  commissioners,  for  the  pur- rf  draining 
poses  hereafter  named.     And  the  governor  is    hereby  authorized  Mattamuskeet 
to  supply  any  vacancy  that  may  occur  by  death,  resignation,  remo- 
val or  refusal  to  act. 

2.  The  said  commissioners  are  hereby  authorized  to  examme  Commissiojrs 
and  ascertain  the  most  practicable  route  for  a  canal,  to  lead  from  contract  for  the 
Mattamuskeet  lake  in  Hyde  county,  to  some  convenient  water  cutting  a  canal, 
course,  which  will  drain  the  said  lake.     When  the   said  board 

of  commissioners  shall  have  ascertained  and  fixed  upon  the  route 
of  said  canal,  they  are  hereby  authorized  and  empowered,  on  be- 
half of  the  State,  to  contract  with  one  or  more  persons  to  cut 
or  open  said  canal  ;  the  said  contract  to  be  made  on  such  terms 
and  conditions,  as  the  said  commissioners  may  think  proper,  taking 
bonds  with  good  securities  in  double  the  amount  of  the  contract, 
conditioned  for  its  due  and  faithful  performance.  t,   ^  ■     a 

3.  It  shall  not  be  lawful  for  any  person  to  enter  lands  that  are  R^^J^™^^  ^^ 
now  vacant,  and  which  may  hereafter  be    reclaimed  by  the  opera-  entered. 
tions  of  this  canal. 

4.  The  said   commissioners  shall  be  allowed  the  sum  of  three  Pay  of  the 

^      -^  „  ^         .       commissioners. 

dollars  per  diem  for  every  day  they  may  be  engaged  in  pertorraing 
the  duties  enjoined  by  this  act. 

5.  The  public  treasurer  shall  be  and   he  is_  hereby    authorized  Public  treas-^^^ 
and  directed  to  pay,  on  the  warrant  of  the   said  commissioners,  a  of  the  literary 
sum  not  exceeding  eight  thousand  dollars  out  of  any  moneys  belong-  fund. 

ing  to  the  literary  fund. 

6.  Said  commissioners,  before  locating  the  canal  shall  ascertain  CommissixDners 
■  what  assistance  in  cutting  the  same,  can  be  procured  trom  those  wlio  ^uh  individ- 

may  receive  benefit  therefrom  ;  and   in    the    location   of  the  said  ualim,prietors 
canal,  the  commissioners  shall  have    reference  to   such  assistance, 
and  are  hereby  authorized  to  make  with  said  individuals  such  con- 
tract in  behalf  of  the  State,  for  the  purpose  aforesaid,  as  they  may 

deem  necessary. 

7.  The  said  commissioners  shall  report  to  the  next  General  As-  Commissioners 
sembly.      This  act  is  to  be  in  force  from  and  after  its  passage.        ^o  report,  &c. 

8.  The  said  commissioners  shall  give  bond  for  the  faithful  per-  Commissioners 
formance  of  their  duties,  which  bond  shall  be  taken  by    the  gover-  to  give  bond. 
nor,  payable  to  the  State  of  North  Carolina. 


384 


LITERARY    FUND. 


[Chap.  LXIX. 


CHAPTER  69. 


AN  ACT  TO  REPEAL  SO  MUCH  OF  THE  ACT,  PASSED  DURING  THE 
PRESENT  SESSION,  ENTITLED  "  AN  ACT  TO  ESTABLISH  A  FUND 
FOR  INTERNAL  IMPROVEMENT,  AND  TO  CREATE  A  BOARD  FOR 
THE  MANAGEMENT  THEREOF,"  AS  IS  INCONSISTENT  WITH  AN 
ACT  PASSED  AT  THE  SAME  SESSION,  ENTITLED  "AN  ACT  TO  AID 
THE  INTERNAL  IMPROVEMENT  OF  THIS  STATE;"  AND  ALSO  TO 
REPEAL  SO  MUCH  OF  THE  ACT  PASSED  DURING  THE  PRESENT 
SESSION,  ENTITLED  "AN  ACT  TO  CREATE  A  FUND  FOR  THE  ES- 
TABLISHMENT OF  COMMON  SCHOOLS,"  AS  IS  INCONSISTENT  WITH 
ANOTHER  ACT,  PASSED  DURING  THE  SAME  SESSION,  ENTITLED 
"  AN  ACT  TO  DRAIN  THE  SWAMP  LANDS  OF  THIS  STATE  AND  TO 
CREATE  A  FUND  FOR  COMMON  SCHOOLS." 


Section 

1 .  Certain  parts  of  the  revised  acts  re- 

lating to  internal  improvements  and 
literary  fund  repealed. 

2.  Compensation  of  the  members  of  the 

literary  fund  board. 


Section 

3.  Board  to  lend  out  the  moneys,  &c.  if 

the  Cape  Fear  bank  fails  to  accept 
amended  charter. 

4.  When  this  act  to  be  in  force. 


/  r^  t:    C-L  ;i^6. 


1.   Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
Certain  parts    That  SO  much  of  the  act  passed  during  the   present   session,  enti- 
of  the  revised  tied  "  An  act  to  estabhsh  a  fund  for  internal  improvement,  and  to 
fnternafim^     Create  a  board  for  the  management  thereof,"  as  is  inconsistent  with 
provementand  an  act  passcd  at  the  same  session,   entitled  "  An  act  to  aid  the  in- 
fund^ep^^ded.  tcrnal  improvement  of  this   State,"  and  also  so  much  of  the  act 
passed  during  this  session,  entitled  "  An  act  to  create  a  fund  for 
the  establishment  of  common  schools,"   as  is   inconsistent  with 
another  act,  passed  during  the  same   session,    entitled  "  An  act  to 
drain  the  swamp  lands  of  this  State,  and  to  create  a  fund  for  com- 
mon schools,"  be,  and  the  same  are  hereby  repealed. 
Compensation       2.   The  persons  composing  the  literary  board,  created  under 
of  the  Ht^arT  ^'^  ^^''  entitled  "  An  act  to  drain  the  swamp  lands  of  this  State,  and 
fund  board.       to  create  a  fund  for  common  schools,"  shall  be  entitled  to  receive 
the  same  pay,   and  under  the  same  regulations,  as  persons  com- 
posing the  board  created  under  an  act,  entided  "  An  act  to  aid  the 
internal  improvements  of  this  State." 
Board  to  lend        3.   If  the  Stockholders  in  the  Cape  Fear  bank  shall  fail  to  accept 
&^  *T^h°'^*^^^'  ^^^  amendment  of  their  charter,  which  is   made  by  an  act  of  the 
Cape  Fear        present  General  Assembly,  so  that  the  funds  of  the  State  cannot  be 
bank  fails  to     •j^^.ggjgjj  ji^  the  stock  of  said  bank  as  by  said  act  is   directed,  it 
charter.  shall  be  the  duty  of  the  president  and  directors  of  the  literary  fund 

to  loan  out  the  sum  so  directed  to  be  invested  and  added  to  the 
literary  fund,  or  otherwise  to  secure  and  manage  the  same,  so  as  to 
cause  said  fund  to  accumulate  as  rapidly  as  possible. 
When  this  act       4.  This  act  shall  be  in  force  from  and  after  its  ratification. 

to  be  in  force. 


Chap.  LXX.] 


MAD    DOGS, 


385 


CHAPTER  TO. 


MAD    DOGS. 


AN  ACT  CONCERNING  MAD  DOGS. 

Be  it   enacted  by  the   General  Assembly  of  the  State  of  JVorth 
i  Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  whenever  the  owner  of  any  dog  shall   know,   or  have  good  Penalty  and  li- 
reason  to  believe,  that  his  or  her  dog,  or  any  dog  belonging  to  his  damages  for 
or  her  slave,  or  other  person  in  his  or  her  employment,  has  been  ^°'  bitteif b^"^ 
bitten  by  a  mad  dog,  and  shall  neglect  or  refuse  immediately  to  mad  dog. 
(kill  the  same,  he  or  she,  so  refusing  or  neglecting,  shall  pay  the 
;  sum  of  fifty  dollars,  to  be  recovered  for  the  use  of  him  or  her, 
iwho  may  sue  for  the  same,  in  any  court  having  jurisdiction  thereof, 
iwith  costs  ;  he  or  she,  so  refusing  or  neglecting  as  aforesaid,  shall 
I  be  further  hable  to  pay  all  damages  which  may  be  sustained  by 
iany  person  or  persons  whatsoever,  by  the  bite  of  any  dog  belong- 
iing  as  aforesaid. 


ISir,  C.  945. 


CHAPTER   71. 


MARRIAGE 


AN  ACT  CONCERNING  MARRIAGE. 


Section 


1, 


I       2. 


6. 


Ministers  of  the  gospel,  and  justices 
of  the  jjeace,  to  celebrate  the  rites  of 
matrimony. 

Clerks  of  the  county  courts  to  issue 
licenses  to  marry,  upon  taking  bond. 

Who  may  publish  the  bans  of  mat- 
rimony. 

Penalty  on  ministers  and  justices  for 
celebrating  the  rites  of  matrimony 
contrary  to  law — Penalty  on  clerks 
for  issuing  licenses  contray  to  law. 

W^hite  persons  prohibited  from  mar- 
rying Indians  or  persons  of  color. 

Penalty  on  ministers  or  justices  for 


VOL.   I. 


49 


/  Section 

marrying  a  white  person  to  an  In- 
dian or  person  of  color. 

7.  What  disposition  to  be  made  of  the 

property  of  an  infant  female  under 
fifteen  years  of  age,  when  she  has 
been  married  contrary  to  law. 

8.  The  trustees  of  such  infant  female's 

property    to    give    bond — Court's 

power  over  them. 
How  to  obtain  a  license  when  the 

parent   or  guardian   of   an  infant 

female  reside  out  of  the  State. 
Penalty  on  clerks  for  issuing  licenses 

contrary  to  the  last  section. 


9. 


10. 


^T.'VCS.'.v^frvPnr.v    Cau^-^fi^       /^^f.  CJ^      ^-  A 


I. 


386  MARRIAGE.  [ChAP.  LXXI. 

1.  Be  it  enacted  by  the  General  Jlssemhly  of  the  State  ofJ^orth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same^ 
Ministers  of     That  all  regular  ministers   of  the  gospel  of  every  denomination 
the  gospel,  and  having  the  cure  of  souls,  and  all  justices  of  the  peace  in  this  State, 
peace^ to°cel- ^  ^^^  hereby  authorized   and  empowered   to  solemnize   the  rites  of 
ebrate  the  rites  matrimony,  according  to  the  rites  and  ceremonies  of  their  respec- 
ma  rimony.  ^j^^  churches,  and  agreeable  to  the  rules  in  this  act  prescribed  ; 
and  the  said  ministers  may  demand  and  take  for  every  couple  by 
them  married,  if  by  license,  the  sum   of  two  dollars,  and,  if  by 
publication,  the  sum  of  one  dollar  to  their  use. 
Clerks  of  the        2.   The  clerk  of  each  county  court  is  hereby  authorized  and 
jp"gg^J^l"/*^    empowered  to  grant  marriage  licenses   to  any  person  applying  for 
censes  to  marry,  the  same,  first  taking  bond  in  the  name  of  the  State  of  North  Car- 
bond.^^  ^^      ohna,  with  sufficient  security,  in  the  sum  of  one  thousand  dollars, 
with  condition  that  there  is  no  lawful  cause  to  obstruct  the  marriage 
for  which  such  license  is  desired,  to  be  recovered  in  an  action  of 
debt,  in  any  court  of  record  having  cognizance  thereof,  by  the  party 
grieved,  which  bond  aforesaid  shall  be   taken,  and  license  granted 
by  the  clerk  of  the  county  in  which  the  feme  resides,  which  license 
shall  be  directed  to  any    authorized  minister  or  justice  of   the 
peace.  ,. 

r^h°iv 'h'  '^^^'  ^'  ^^^U  minister  of  the  gospel,  qualified  as  in  this  act  before  di- 
of  matrimony,  rected,  or  any  other  person  appointed  by  their  respective  churches  as 
a  reader,  is  hereby  authorized  and  empowered  to  publish  the  bans 
of  matrimony  between  any  two  persons  requesting  the  same  :  Pro- 
vided, that  every  publication  shall  be  made  three  several  Sundays 
in  the  congregation,  immediately  after  or  during  divine  worship, 
and  shall  give  a  certificate  of  such  publication,  when  demanded, 
directed  to  any  authorized  minister  or  justice  of  the  peace,  and 
may  demand  and  take  for  his  service  the  sum  of  forty  cents  and  no 
more  :  Provided,  that  the  people  called  quakers,  shall  retain  their 
former  rules  and  privileges  in  solemnizing  the  rites  of  matrimony 
in  their  own  church, 
penalty  on  4.   If  any  minister  or  justice  of  the  peace  shall  knowingly  join 

ministers  and    together  in  matrimony  any  two  persons,  in  any  other  way  or  man- 

lusticcs  tor  ccl-      ^  .  ■^.  ,*  * 

ebrating  the      ner  than  by  this  act    directed,  he  shall  forfeit  and  pay,  for  every 
rites  of  mat-    g^p]^  ofFence,  the  sum  of  one  hundred  dollars,  to  be  recovered]  by 

rimony  con-  .  „    ,   /     .  ^  i     i       ■  •  i       ^    n 

trary  to  law.    action  oi  debt  m  any  court    oi  record,  havmg  cognizance  thereoi, 

one  half  to  the  use  of  him  who  will  sue  for  the  same,  and  the  other 

half  to  the  use  of  the  county  where  such  forfeiture  ariseth,  and  be 

also  liable  to  an  action  for  damages  to  the  party  grieved.     And  if 

Penalty  on       any  clerk  shall  knowingly  grant  any  marriage  license,  in  any  way 

clerks  for  is-     or  manner  otherwise  than  by  this  act  directed,  he  shall  forfeit  and 

contfary^to*^      paj  for  every  such  ofFence,  the  sum  of  two  hundred  dollars,  to  be 

law.  recovered  aad  applied  as  above  directed,  and  be  also  liable  to  an 

action  fo  damages  to  the  party  grieved. 
White  persons      5.  If  any  white.man  or  woman,  being  free,  shall  intermarry  with 

* 

1.  177S,  c.  134,  s.  2.— 1741,  c.  23. 

2.  1778,  c.  134,  s.  3. 

3.  1778,  c.  134,  s.  4. 

4.  1778,  c.  134,  S.  5. 

5.  1741,  c.  23,  s.  4. 


I^HAP.    LXXL]  MARRIAGE.  387 

I 

|in  Indian,  negro,  mustee  or  mulatto  man  or  woman,  or  any  person  from  marrying 

ftf  mixed  blood  to  the  third  generation,  bond  or  free,  he  shall,  by  ^^^Zll  of 

udgment  of  the   county   court,  forfeit  and  pay    the  sum  of  one  color. 

lundred  dollars  to  the  use  of  the  county. 

6.  No  minister  of  the  gospel,  or  justice  of  the  peace  within  this  Penalty  on 
State,  shall  presume  to  marry  a  white  man  or    woman    with   an  mmisters^or       ^ 
indian,  negro,  mustee  or  mulatto  woman  or  man,  or  any  person  of  carrying  a 
mixed  blood,  as  in  the  preceding  section,  knowing  them  to  be  so,  ^^'^j^^^?™  '° 
opon  pain  of  forfeiting  and  paying  for  every  such  offence,  the  sum  person  of  color. 
of  one  hundred  dollars,  to  be  recovered  and  applied  as  in  the  pre- 

cedm""  section. 

'     7.   Upon  the  conviction  of  any  person  for  marrying    an   infant  What  dispo- 
ifemale  under  fifteen  years  of  age,  without   the  written  consent  of  ^ade  of  the 
Iher  father,  it  shall  be  the  duty  of  the  court,  before  whom  the  same  propert^^of^an 
'is  had,  to  appoint  one  or  more  trustees  to  take  charge  of  the  prop-  ^nder  fifteen 
erty  belonging  to  the  female  so   married;  and  the   whole  .estate,years  of  a|e,^ 
both  real  and  personal,  vested  in  the  said  female,  at  the    time    of  i^een  married 
,such  marriage,  and  all  the  right,  title  and  interest,  which  she  had  contrary  to 
at  such  time  to  any  property,  either  at   law  or  in  equity,  shall   be 
I  vested  in  and  belong  to  the  trustee  or  trustees  so  appointed  by  the 
(court,  and  he,  she  or  they  shall  have  full  power  and  authority  to 
I  take  all  such  estate  into  his,  her  or  their  possession,  and  if  neces- 
sary to  sue  for  and  recover  the  whole  or  any  part  of  said  property, 
in  his,  her  or  their  own  name,  as  trustee  or  trustees  aforesaid,  and 
the  said  trustee  or  trustees  shall  hold  the  said  estate  and  property, 
so  received  and  recovered,  to  and  for  the  following  use  and  trust 
to  wit  :  to  the  sole  and  separate  use  of  the  said  female,  during  the 
continuance  of  the  said  marriage,  free  and  separate  from  the  con- 
trol of  her  husband.     And  upon  the  termination  of  the  said  mar- 
riage, if  the  said  female  shall  be  then   living,  the  said   trustee    or 
trustees  shall  convey  the  said  estate  to  the  said  female,  absolutely 
and  in  fee  simple  ;  and  if  said  female  shall  not  be  then  hving,  then 
the  said  estate  shall  be  conveyed  to  such  child  or  children,  as  she 
may  leave  surviving  her,  share   and  share  ahke  ;  and   in  default  of 
such  children,  then  the  said  estate  to  be  conveyed  to  such  person 
or  persons,  as  would  have  been  distributees  or  heirs  at  law,  accord- 
ing to  the  nature  of  the   estate,  if  she  had    died    unmarried  ;  and 
the  husband,  convicted  of  the  offence  of  marrying  an  infant  female 
under  fifteen  years  of  age  contrary  to  law,  shall  in  no  case  be  per- 
mitted to  have,  hold,   use  or  enjoy,  sell  or  dispose   of  any  part  of 
the  estate,  to  which  his  wife  was  entitled  at  the  time  of  such  mar- 
riage ;  and  all   sales,    dispositions  and  releases   made  by  him  of 
such  property  before  such  conviction,  shall  be,  and  are   hereby 
declared  to  be  null  and  void,  nor  shall  he,  in  case  of  the  death  of 
his  said  wife,  be  entitled  to  administration    on  her    estate,  nor  to 
any  distributive  share  thereof,  nor  to  any  right  of  courtesy  therein. 

8.   The  said  trustee  or  trustees  shall  give  bond,  payable  to  the  Tl^^tr^-t^ees^of 
State  of  North  Carolina,  with  security,  in  such  a  sum  as  the  court  male's  property 

to  arive  bond. 


6.  1741,  c.  23.  s.  5. 

7.  1820,  c.  1041,  s.  3. 

8.  1820,  c.  1041,  s.  4. 


1^ 


388 


MEMBERS  OF  CONGRESS.     [ChAP.  LXXII. 


over  them. 


appointing  him,  her  or  them,  shall  prescribe,  for  the  faithful  per- 
formance of  the  trusts  reposed  in  them,  and  for  accounting  for  all 
the  profits  of  the  estate  entrusted  to  them,  and  shall  be  allowed 
such  compensation  for  his,  her  or  their  trouble  in  the  management 
Courtis  power  of  such  estate,  as  the  court  shall  direct  ;  and  the  superior  courts 
shall  have  power  at  any  time,  when  sufficient  cause  is  shown  to 
them,  to  remove  the  said  trustee  or  trustees,  and  appoint  others  in 
their  stead,  who  shall  have  the  same  powers  and  authorities,  and 
be  governed  by  the  same  rules,  as  the  first  appointed  trustee  or 
trustees. 

9.  In  all  cases  when  a  license  is  applied  for  to  marry  a  female, 
whose  parents  or  guardian  reside  without  the  limits  of  this  State, 

mfant'female"  ^^  ^^^^^  ^^  ^^®  ^"^^  ^^  ^^®  person  SO  applying,  to  produce  to  the 
reside  out  of  clerk  of  the  county  court,  or  any  other  person  legally  authorized 
to  grant  license  to  marry,  a  certificate  in  writing  from  under  the 
hand  of  the  parent  or  guardian  of  the  said  female,  as  the  case  may 
be,  stating  she  has  arrived  to  the  full  age  of  fifteen  years,  and  has 
leave  to  marry,  which  certificate  shall  be  filed  in  the  clerk's  office, 
in  the  county  where  the  license  was  obtained. 

]  0.  If  any  clerk,  or  any  other  person  legally  authorized  to  issue 
license  to  marry,  shall  give,  grant  or  issue  any  license,  contrary  to 
the  true  intent  and  meaning  of  the  ninth  section  of  this  act,  he 
shall  forfeit  and  pay  the  sum  of  one  thousand  dollars,  to  be  recov- 
ered in  any  court  of  justice  having  cognizance  of  the  same. 


How  to  obtain 
a  license  when 
the  parents  or 


this  State. 


Penalty  on 
clerks  lor  is- 
suing licenses 
contrary  to  the 
last  section. 


9.  1820,  c.  1041,  s.  S. 

10.  1S20,  c.  1041,  S.6. 


Note.  —  References  to  Adjudged  Cases. 
Sect.  4.  State  vs.  Loftin,2  Dev.  and  Bat. 


CHAPTER  72. 
MEMBERS  OF  CONGRESS. 


AN   ACT   CONCERNING   THE   MODE   OF   CHOOSING   SENATORS  AND 
REPRESENTATIVES  IN  THE  CONGRESS  OF  THE  UNITED  STATES. 


Section 

1.  Senators    in    congress,   how    to  be 

chosen. 

2.  How  to  be  commissioned. 

3.  The  State  divided  into  districts  for 

choosing    representatives    in    con- 


Section 

gress — Each  district  entitled  to  one 
representative. 

4.  Time  and  manner  of  conducting  the 

election. 

5.  Governor    may '  order    elections    at 


Chap.  LXXIL]    members  of  congress. 


389 


Section 

other  than  the  regular  time  in  cer- 
tain cases. 

6.  Penalty  on  persons  for  voting  more 

than  once  at  an  election — Separate 
elections  in  counties,  how  to  be 
conducted. 

7.  Duty  of  the   returning  officer  with 

regard  to  elections. 

8.  Returning  officers   of  the    different 

counties  of  the  district,  to  meet  and 
compare  the  polls,  and  to  give  a 


Section 

certificate  of  election  to  the  suc- 
cessful candidate — Provision  when 
there  is  an  equal  number  of  votes 
for  two  or  more  candidates. 
9.  Governor  to  commission  the  persons 
elected  representatives. 

Returning    officer's    allowance    for 
comparing  polls. 

How  and  when  elections  to  be  held 
in  cases  of  vacancy. 


10. 


11. 


how 
to  be  chosen. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JSTorth 
Carolina,   and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  the  legislature  of  the  State  shall,  whenever  a  senator  or  sen-  Senators  in 
ators  in  the  congress  of  the  United  States  is  or  are  to  be  chosen,  ^°'|j^''^p*j^^j 
at  such  time  during  their  sessions  as  they  shall  appoint,  elect,  by 
joint  vote  of  both  houses  of  the  General  Assembly,  the  vote  being 

viva  voce,  such  senator  or  senators  as  may  be  necessary,  under  the 
inspection  of  two  members  from  each  house  ;  and  it  shall  be  ne- 
cessary to  have  a  majority  of  the  votes  of  both  houses  to  elect  any 
person  for  that  purpose. 

2.  The  person  or  persons,  so  elected  senator  or  senators,  shall  ^^°^!"  P^   , 

,      .  ^.^  ~^,  .  .     .       ,        .  .  Ill  1  commissioned. 

obtain  a  certificate  oi  his  or  their  election  signed  by  the  speakers 
of  the  two  houses,  and  shall  be  commissioned  by  the  governor  for 
the  time  being,  with  the  great  seal  of  the  State  annexed  to  the 
commission. 

3.  For  the  purpose  of  electing  representatives  to  the  congress  The  State  di- 
of  the  United  States,  this  State  shall  be  divided  into  thirteen  tlis- [^'J^^  Jl^'J" '^^®' 
tricts  as   follows,  to  wit  :  The  counties  of  Perquimons,  Chowan,  choosing  rep- 
Currituck,  Camden,  Gates,  Pasquotank  and  Hertford  shall  com- •',^^^';".^J*^^^^®  ^" 
pose  one  district ;  the  counties   of  Northampton,  Bertie,  Halifax  each  district 
and   Martin  shall   compose  the   second   district  ;  the  counties  of  ^"'^^*'"'  ^°  ""'^ 
Beaufort,  Hyde,  Edgecombe,  Pitt,  Tyrrel  and  Washington  shall 
compose  the  third  district ;  the  counties  of  Lenoir,  Craven,  Jones, 
Carteret,    Wayne,     Greene    and    Johnston    shall    compose    the 
fourth  district ;  the  counties  of  New  Hanover,  Brunswick,  Ons- 
low, Duphn,  Sampson,  Bladen  and  Columbus  shall  compose  the 
fifth  district  ;  the  counties  of  Franklin,    Granville,   Warren   and 
Nash  shall  compose  the  sixth  district ;  the  counties  of  Richmond, 
Anson,    Moore,   Cumberland,    Robeson    and    Montgomery   shall 
compose  the  seventh  district  ;  the  counties  of  Orange,  Wake  and 
Person  shall  compose  the  eighth  district ;  the  counties  of  Rock- 
ingham, Stokes,  Guilford  and  Caswell  shall   compose   the  ninth 
district ;  the  counties  of  Randolph,  Rowan,  Davidson,  Davie  and 
Chatham  shall  compose  the  tenth  district ;  the  counties  of  Meck- 
lenburg, Cabarrus  and  Lincoln  shall  compose  the  eleventh  district  ; 
the  counties  of  Buncombe,  Rutherford,  Haywood,  Burke,  Macon 
and  Yancey  shall  compose  the  twelfth  district,  and  the  counties  of 


representative. 


1.  1789,  c.  293,  s.  1. 

2.  1789,  C.  298,  S.  2. 

3.  1812,  c.  831,  s.  1.— 1833,  c.  96.— 1836,  c.  4. 


390  MEMBERS  OF  CONGRESS.      [ChAP.  LXXII. 

Wilkes,  Surry,  Iredell  and  Ashe  shall  compose  the  thirteenth  dis- 
trict ;  each  of  which  districts  shall  be  entitled  to  elect  and  send 
one  representative  to  the  congress  of  the  United  States. 
Time  and  4^   "phe  election  shall  be  held  on  the  same  days  of  the  year  and 

in3.nii6r  oi  con-  *  * 

ducting  the  at  the  same  places,  as  are  now  prescribed  by  law  for  holding  elec- 
election.  tions  for  the  members  to  represent  the  several  counties  in  the  Gen- 

eral Assembly  of  this  State,  at  the  usual  time  of  election  immedi- 
ately succeeding  the  termination  of  each  congress  ;  all  of  which 
elections  are  to  be  conducted  by  the  sheriffs,  or  by  other  persons 
legally  appointed  therefor,  in  like  manner  as  the  elections  of  the 
State  legislature,  except  that  the  inspectors  of  the  election,  and 
clerks  of  the  polls,  shall  be  sworn  or  affirmed  to  act  with  justice  and 
impartiality,  which  oath  may  be  administered  by  any  justice  of  the 
peace,  or  any  other  person  thereunto  authorized,  and  that  each 
qualified  voter  shall  be  admitted  to  give  his  suffrage  only  in  the 
county  wherein  he  resides. 
Governor  may       5^   jf  gj^y  event  shall  happen  to  render  the  meeting  of  congress 

order  elections  /•         i  .    ^\  ~  i    1     /•  1 

at  other  than  necessary,  alter  the  expn-ation  01  any  congress,  and  before  the 
the  regular       ^jjj^g  fixed  for  the  election  then  next  to  ensue,  a  new  congress  shall 

time  in  C6rt3,in.  ^ 

cases.  be  called,  the  governor,  on  receiving  information  to  that  effect,  is 

hereby  authorized  to  declare  the  same  by  proclamation,  and  to  re- 
quire the  freemen  of  this  State  to  meet  in  their  respective  coun- 
ties, at  the  time  or  times  therein  to  be  appointed,  and  at  the  places 
established  by  law,  then  and  there  to  give  their  votes  for  represen- 
tatives :  which  elections,  so  held  in  pursuance  of  the  proclamation 
of  the  governor,  shall  be  conducted  in  like  manner,  and  to  all  in- 
tents and  purposes,  shall  be  as  legal  and  valid,  as  if  the  same  had 
been  held  at  the  time  or  times  prescribed  in  the  preceding  section. 
Penalty  on  6.   If  any  person  whatsoever  shall  vote  more  than  once,  in  any 

voUn"  more  election  for  a  representative  in  congress  for  his  district,  he  shall 
than  once  at  forfeit  and  pay  the  sum  of  one  hundred  dollars,  to  be  recovered 
"        *  before  a  single  justice  of  the  peace,  one  half  to   the  use  of  the 

county  in  which  the  offence  is  committed,  and  the  other  half  to  the 
Separate  elec-  yge  of  the  person  suing  for  the  same.     And  in  counties,  where 
tiesfhow°to'be  separate  places  of  elections  have  been,  or  shall  be  established  by 
conducted.       law,  the  elections  herein  directed,  shall  be  conducted  in  the  same 
manner  as  elections  for  members  of  the  General  Assembly  ;  each 
officer  presiding  at  an  election  making  return  of  the  poll,  which  has 
been  had  before  him,  unto  the  sheriff  or  other  returning  officer  of 
his  county,   at  the  court  house  thereof,  on  or  before  the  Monday 
immediately  following  the  election. 
Duty  of  the  re-      7^  Immediately  upon  the  close  of  the  election  in  each  county, 
with"regard'^^to  where  there  is  but  one  place  of  election,  the  sheriff  or  other  re- 
elections,         turning  officer  shall,  in  the  presence  of  the  inspectors  of  the  elec- 
tion, cast  up  the  scrolls  and  make  out  two  correct  statements  of 
the  number  of  suffrages  given  in  his  county  to  each  candidate,  one 
of  which  statements  shall  be,  by  the  inspectors,  filed  in  the  court  of 
pleas  and  quarter  sessions  for  said  county,  after  the  same  is   duly 

4.  1512,  c.  831,  s  2. 

5.  1312,  c.  831.  s.  3. 

6.  1812,  c.  831,'  s.  4. 

7.  1812,  c.  831,  s.  5. 


an  election. 


Chap.  LXXIL]  members  of  congress.  391 

certified  by  the  said  returning  officer  and  a  majority  of  the  inspec- 
tors ;  and  the  sheriff  or  other  returning  officer,  by  himself  or  dep- 
uty, shall  attend  with  the  other,  on  the  day  and  at  the  places  men- 
tioned in  the  next  section.  And  in  each  county,  where  separate 
elec*^ions  are  holden,  the  presiding  officer  at  each  place  of  election 
shah,  immediately  upon  the  close  of  the  poll,  in  the  presence  of 
the  inspectors,  cast  up  the  scrolls  and  make  out  two  correct  state- 
ments of  the  number  of  suffrages  given  thereat  for  each  candidate, 
one  of  which  statements  shall  be,  by  the  inspectors  of  said  poll,  filed 
in  the  office  of  the  clerk  of  the  court  of  pleas  and  quarter  sessions 
of  the  county,  after  the  same  has  been  duly  certified  by  the  said 
returning  officer  and  a  majority  of  the  inspectors,  and  the  other 
shall  be  delivered  to  the  sheriff  or  other  returning  officer  of  the 
county,  jis  prescribed  in  the  preceding  section  ;  and  the  sheriff  or 
other  returning  officer  as  aforesaid  shall  publicly,  at  the  court  house 
aforesaid,  ascertain  by  fair  addition  of  the  suffrages,  the  return  of 
the  whole  number  received  for  each  candidate  in  the  county,  and 
thereof  shall  make  two  statements  under  his  hand,  one  of  which 
he  shall  file  in  the  office  of  the  clerk  of  the  court  of  pleas  and 
quarter  sessions  of  his  county,  and  with  the  other  by  himself  ^or 
deputy  shall  attend  on  the  day  and  at  the  place  mentioned  in  the 
next  section. 

8.  The  sheriffs,  or  other  returning  officers,  of  the   counties   of  Returning  of- 
each  district,  shall  meet,  on  the  Thursday  next  after  each  election,  different  coun- 
at  the  court  house  of  the  county  first  mentioned  in  their  respective  ties  of  the  dis- 
districts  :  Provided  alivays,  that  if  any  accident  shall  happen  to  and  compare 
either  of  the  returning  officers,  which  may  prevent  any  or  either  of  the  polls,  and 
them  from  meeting  on  the  day  aforesaid,  the  returns  of  each  and  lificate  of  elec- 
every  officer  shall  be  received  on  the  day  following  ;  and  the  sher-  tion  to  the  suc- 
iff  or  other  returning  officer,  failing  to  attend  at  the  time  and  place  didate. 
above  mentioned,  as  required,  shall  forfeit  and  pay  the  sum  of  one 
thousand  dollars,  to  be  recovered  for  the  use  of  the  State,  upon  due 

proof  thereof  in  any  court  of  law  within  this  State,  by  an  action  of 
debt  in  the  name  of  the  treasurer  of  the  State  for  the  time  being. 
And  when  the  sheriffs  or  other  returning  officers  shall  be  convened 
as   aforesaid,  the   poll  for  the  different  counties  shall,  by  the  said 
sheriffs  or  other  returning  officers,  as  the  case  may  be,  in  presence 
of  three  justices   of  the  peace,  who  are  to  be  summoned  by  the 
sheriff  or  other  returning  officer  of  the  county  where  they  shall 
meet,  for  that  purpose,  be  examined   and  compai'ed,  and  a  certifi- 
cate under  the  hands  and  seals  of  said  returning  officers  shall  be 
given  to  the  candidate  in  each  district,  for  whom  the  greatest  num- 
ber of  votes  shall  have  been  given  in  said  district.     But  if  two  or  Provision 
more  candidates  shall  have  an  equal  number  of  votes,  the  said  re-  where  there  is 
turning  officers  shall  determine  which  of  them  shall  be  the  repre-  ber^'Xvotes^or 
sentative,  and  if  no  decision  is  by  them  made,  then  they  shall  de-  two  or  more 
cide  the  same  by  drawing,  in  like  manner  as  the  grand  jury  is  drawn  *^^"  '  ^'^^' 
for  in  the  superior  court. 

9.  Each  and  every  person,  who  shall  be  duly  elected  a  repre- 

8.  1831,  c.  831,  s.  6. 

9.  1812,  c.  831,  s.  7. 


892 


MILITIA. 


[Chap.  LXXIII. 


Governor  to 
commission 
the  persons 
elected  rep- 
resentatives. 


Returning  of- 
ficer's allow- 
ance for  com- 
paring polls. 


How  and  when 
elections  to  be 
held  in  cases 
of  vacancy. 


sentative,  shall,  upon  obtaining  a  certificate  of  his  election  accord- 
ing to  the  direction  above  mentioned,  obtain  from  his  excellency 
the  governor  a  commission,  certifying  his  appointment  as  a  repre- 
sentative of  this  State,  which  commission  the  governor  is  hereby 
empowered  and  required,  on  such  certificate  being  produced  to 
him,  to  issue. 

10.  Every  sheriff  or  other  returning  officer,  holding  elections 
in  pursuance  of  the  above  provisions,  shall  be  allowed  the  sum  of 
two  dollars  and  a  half  for  every  thirty  miles  travelling  to,  and  re- 
turning from,  the  place  of  comparing  the  polls  in  the  district,  and 
the  same  sum  for  every  day  he  shall  necessarily  attend  for  the  pur- 
pose of  comparing  said  polls,  and  also  the  amount  of  his  ferriages, 
which  shall  be  paid  by  the  treasurer  on  affidavit  of  the  sheriff  or 
returning  officer  aforesaid. 

11.  In  the  event  of  the  death,  or  resignation  of  any  member  of 
the  house  of  representatives  in  the  congress  of  the  United  States, 
the  election  to  supply  such  vacancy,  held  in  pursuance  of  the  writ 
of  election  issued  by  the  governor,  shall  be  held  at  the  time  di- 
rected in  such  writ,  under  the  same  rules,  regulations  and  restric- 
tions as  herein  prescribed  for  holding,  conducting  and  determining 
the  regular  elections. 


10.  1812,  c.  831,  s.  8. 

11.  1S12,  c.  831,  S.  9. 


CHAPTER  73. 


M  IlilT  I  A  . 


AN  ACT  CONCERNING  THE  MILITIA  OF  THIS  STATE. 


Section 

1.  Who  are  to  be  enrolled  and  how  pro- 

vided. 

2.  Who  are  exempted  from  militia  duty. 

3.  Members  of  fire  companies  exempted 

— Also    persons    of   conscientious 
scruples. 

4.  Officers  to  enrol  and  make  return  of 

exempts.  c 

5.  Free  persons  of  color  not  to  be  en- 

rolled, except  as  musicians. 

6.  Persons   enrolled  for  duty  to   equip 

themselves— Forfeitures  for  neglect- 
ing to  equip. 

7.  How  the  infantry  shall  be  divided. 

8.  Regiments,   brigades  and   divisions, 

how  distinguished. 


Section 

9.  Officers  of  the  infantry — Their  grade 
and  how  to  be  appointed — Adju- 
tant general  to  be  appointed — Gov- 
ernor may  appoint  four  aids  de 
camp. 

10-  Uniform  of  officers. 

11.  Penalty  on  officers  for  resigning  or 
failing  to  equip  themselves  -\vithin 
twelve  months — How  major  and 
brigadier  generals,  colonels  and 
other  field  officers  shall  be  elected 
and  commissioned — How  they  shall 
resign,  and  to  whom  notification  of 
vacancies  shall  be  made,  and  by 
whom. 


Chap.  LXXIIL] 


Militia. 


393 


Section 

12.  Officers,  to  give  notice  of  their  ab- 

sence. 

13.  Officers  to  deliver  to  their  successors 

money  or  papers. 

14.  Rules  of  discipline. 

15.  Captains'   districts,  how  laid  off— 

Boundary  lines  of  regiments  in  the 
the  same  county,  how  may  be  al- 
tered. 

16.  Regulations  as  to  company  musters. 

17.  Company  courts   martial— How    to 

proceed — Appeal  allowed. 

18.  Company  musicians,  how  appointed, 

and  their  privileges. 

19.  Overseers  of  roads  not  to  order  out 

hands  on  days  of  company  muster. 

20.  Captains  of  companies  to  make  re- 

turns. 

21.  Regimental  or  battalion  musters. 

22.  Penalty  on  officers  failing  to  attend 

reviews  or  musters. 

23.  Commandants  of  regiments,  &c.  to 

give  notice  of  reviews  or  musters. 

24.  Commissioned  officers  of  regiment, 

&,c.  to  meet  for  exercise,  the  day 
before  review  or  muster. 

25.  Penalties  on  officers  and  privates  for 

misbehaving. 

26.  Persons  on  muster  ground  failing  to 

do  duty,  to  be  arrested. 

27.  Officers  and  privates  attending  mus- 

ters, exempt  from  arrest  in  civil 
cases  —Not  to  pay  tolls  or  ferriages. 

28.  Parents,  &c.  liable  for  fines. 

29.  Regimental    and    battalion    courts 
martial — Their  power   and  duties. 

30 .  Duty  of  paymasters . 

31.  Officers  holding  a  court  martial  must 

take  an  oath. 

32.  Proceedings  at  courts  martial  against 

delinquents. 

33.  Courts  martial  may  adjourn. 

34.  Duties   of  commanding    officers    of 

regiments  and.  companies  as  to 
fines. 

35.  Returns  to  be  made  by  the  command- 

ants of  regiments. 

36.  Duties  of  major  and  brigadier  gen- 

erals as  to  reviews. 

37.  Returns  to  be  made  by  brigadier  and 

major  generals. 

38.  Penalty  on  a  general  officer  or  com- 

mandant of  a  regiment  for  failing 
to  make  review  or  muster,  to  make 
returns,  or  to  be  properly  equipped. 

39.  Duty  of  the  adjutant  general- 

40.  In   certain    cases,    returns   may  be 

made  and  orders  issued  through  the 
post  office. 

VOL.  I.  50 


Section 

41.  Governor  may  remit  fines  and  penal- 

ties. 

42.  Regiments   of   cavalry,    how   to   be 

formed,  officered,  equipped,  &c. 

43.  Troops  of  cavalry,  when  to  muster, 

how  returns  to  be  made — And  who 
to  command  when  mustering  with 
infantry. 

44.  Field   officers   of  cavalry  to  review 

and  make  returns. 

45.  Cavalry  courts  martial  to  be  held. 

46.  Fines  of  cavalry  officers  and  privates 

same  as  in  the  infantry. 

47.  How  cavalry  fines  to  be  appropriated. 

48.  Duty  of  adjutant  of  the  regiment. 

49.  Certain  sections  of  this  act  to  apply 

to  the  cavalry. 

50.  Provision  when  the  number  of  the 

cavalry  troop  shall  be  less  than 
required  by  law. 

51.  Volunteer  companies   of    artillery, 

light  infantry,  grenadiers  or  rifle- 
men may  be  formed. 

52.  May  choose  their  own  uniform — To 

be  under  the  command  of  the  com- 
manding officer  of  the  regiment, 
and  to  do  duty  as  other  companies. 

53.  A  regiment  of  volunteer  companies 

may  be  formed — Field  officers,  how 
chosen. 

54.  How  captains,  lieutenants  and  non- 

commissioned officers  shall  be 
elected  or  appointed. 

55.  Company  to   muster  once  in   three 

months — May  adopt  rules  and  reg- 
ulations for  their  own  government. 

56.  Officers  of  volunteer   companies  to 

make  returns. 

57.  Persons   enrolled  in  volunteer  com- 

panies not  to  return  to  the  infantry 
except  by  permission,  &c. — Volun- 
teers bound  to  serve  in  the  infantry 
until  they  equip  themselves. 

58.  Officers  of  volunteer  regiments  to  re- 

view. 

59.  How  vacancies  among  the  field  offi- 

cers of  volunteer  regiments  shall  be 
filled. 

60.  Certain  sections  of  this  act,  relative 

to  the  infantry,  to  apply  to  the  artil- 
lery, &c. 

61.  General  courts  martial,  how  to  be  ap- 

pointed and  held. 

62.  Officers   of    general   courts  martial, 

how  to  be  selected. 

63.  Of  what  rank  the  officers  shall  be. 

64.  Officers  for  courts  martial  to  be  reg- 

ularly detailed. 

65.  How  to  be  detailed. 


394 


MILITIA. 


[Chap.  LXXIII. 


Who  are  to  be 
enrolled  and 
how  provided. 


Who  are  ex- 
empted from 
militia  duty. 


Section 

66.  Courts  martial,  how  constituted. 

67.  Officers  of  a  court  martial,  how  to 

take  rank — To  take  an  oath. 
63.  How  witnesses  to  be  summoned. 

69.  How  to  be  sworn. 

70.  Rules  for  the  government  of  courts 

martial. 
Duty  of  judge  advocate. 


71. 

72. 


Proceedings  against  officers  arrested 
and  refusing  to  attend. 

73.  Perjury  before  courts  martial. 

74.  For  what  conduct  an  officer  may  be 

cashiered. 

75.  Detachments  of  militia  for  the  Uni- 

ted States'  service. 

76.  Substitutes  may  be  received. 

77.  Vacancies   under   the  rank  of  field 

officers  in  detachments,  how  to  be 
supplied. 

78.  A  militiaman,  after  one  tour,  to  be 

exempt  from  a  second  draft. 

79.  Penalty  for  refusing  to  perform  duty 


Section 

when  ordered  out  by  the  civil  au- 
thority. 
80.  Seven  justices  may  call  out  the  mi- 
litia in  case   of  invasion  or  insur- 
rection. 

Duty  of  the  commanding  officer  on 
such  requisition. 

Commanding  officer  called  out,  to 
notify  his  superior  officer — Superior 
officer  to  notify  the  governor. 

Three  justices  may  order  out  the 
militia  to  suppress  outlawed  or 
runaway  slaves. 

Pay  of  the  militia  when  in  service. 

Punishment  for  refusing  to  appear 
on  call  or  alarm  given. 

Punishment  for  desertion. 

Repealing  clause. 

Adjutant  general  to  have  copies  of 
this  act  printed  and  distributed. 

When  this  act  to  be  in  force. 


81. 


82. 


83. 


84. 
85. 

86. 

87. 


89. 


0 


1 


Be  it  enacted  by  the  General  Assembly  of  the  State  of 
J^orth  Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  all  free  white  men  and  white  apprentices,  citizens  of  this 
State,  or  of  the  United  States  residing  in  this  State,  who  are  or 
shall  be  of  the  age  of  eighteen  and  under  the  age  of  fortyfive  years, 
shall,  as  soon  as  is  practicable,  be  severally  and  respectively  en- 
rolled in  the  militia  of  this  State  by  the  captain  or  commanding 
officer  of  the  infantry  company,  within  the  bounds  of  whose  dis- 
trict, (to  be  alloted  him  as  hereinafter  directed,)  such  citizen  shall 
reside  ;  and  it  shall  at  all  times  be  the  duty  of  every  captain,  or 
commanding  officer  of  any  company,  to  enrol  every  such  citizen, 
except  as  hereinafter  excepted,  and  also  those  between  the  ages 
aforesaid  and  not  exempt  by  law,  w^ho  may  from  time  to  time  come 
to  reside  within  the  bounds  of  his  district  and  remain  therein 
thirty  days,  and  he  shall  without  delay  notify  such  citizen  of  the 
enrolment,  by  a  proper  non-commissioned  officer  of  the  company, 
by  whom  the  notice  may  be  proved. 

2.  The  vice  president  of  the  United  States,  the  officers,  judi- 
cial and  executive,  of  the  United  States,  the  members  of  both 
houses  of  congress  and  their  respective  officers  ;  the  judges  of  the 
supreme  and  superior  courts  of  law,  and  justices  of  the  peace, 
councillors  of  state,  the  secretary,  comptroller,  treasurer,  the 
governor's  private  secretary,  attorney  general,  solicitors,  the  clerks 
of  the  several  courts  of  record,  the  state  printer,  high  sherifis  of 
the  several  counties,  physicians  and  surgeons,  ministers  of  the  gos- 
pel of  every  denomination,  that  are  properly  and  regularly  ordain- 
ed and  have  the  cure  of  souls,  all  custom  house  officers,  postmas- 
ters, and  stage  drivers  or  mail  carriers,  employed  in  the  care  and 
conveyance  of  the  mail  to   the  post  offices  of  the  United  States, 


1.  1806,  c.  70S,  s.  1. 

2.  1806,  C.  706,  s.  2.— 1823,  C.  1213.- 


-1812,  C.  828,  s.  7. 


Chap.  LXXIIL]  militia.  395 

all  ferrymen,  employed  on  any  ferry  of  a  public  road,  provided  the 
same  shall  not  exceed  one  superintendent  and  one  other  to  each 
ferry,  all  millers  of  public  mills,  provided  that  this  exemption  shall 
only  extend  as  to  each  mill  to  one  person  subject  to  do  military  duty, 
whose  occupation  and  daily  employment  it  is  to  attend  and  per- 
form the  duty  of  a  public  miller,  all  inspectors  of  produce,  all 
branch  and  hcensed  pilots,  all  mariners  actually  employed  in  the 
sea  service  of  the  United  States,  or  of  any  merchant,  all  officers 
and  students  of  the  university  and  all  other  seminaries  of  learning 
within  this  State,  shall  be  and  they  are  hereby  exempted  from  mili- 
tary duty  :  Provided  always,  that  nothing  herein  contained  shall  be 
so  construed  as  to  exempt  any  person  from  performing  duty  in 
case  of  invasion  or  insurrection  in  this  State. 

3.  The   members    of  the   several   fire   companies,   so   Ions;  as  Members  of 

,  ,     T,  .  ,  ~        .  ,  .  *        ,     '  ^        tire  companies 

they  shall  contmue  members  oi  said  companies,  that  now  are  or  exempted. 
hereafter  may  be  estabhshed  in  this  State,  shall  be  and  they  are 
hereby  declared  exempted  from  all  militia  duty,  except  in  time 
of  war,  invasion  or  insurrection.  It  shall  be  the  duty  of  the 
captains  of  all  fire  companies,  once  a  year,  to  make  a  regular  re- 
turn to  the  colonel  commandant  of  the  regiment,  by  the  fifteenth  day 
of  October,  under  the  penalties  now  imposed  on  captains  of  mili- 
tia companies  on  failure  of  making  return,  in  the  limits  of  which 
the  company  exists,  of  all  persons  belonging  to  said  company  ha- 
ble  to  muster,  and  the  colonel  of  the  regiment  shall  include  them 
in  his  regular  annual  returns  to  the  general  of  the  brigade  and  adju- 
tant general.  Persons  having  scruples  of  conscience  against  bear-  Also  persons  of 
ing  arms,  who  shall  produce,  to  the  captains  of  their  respective '^°"®*^j^'^'^^°"^ 
districts,  certificates,  signed  by  the  clerks  of  their  respective 
churches,  that  they  are  regular  members  thereof,  and  shall  make 
oath  or  affirmation  before  a  justice  of  the  peace  that  they  are, 
from  religious  scruples,  averse  to  bearing  arms,  and  shall  also 
produce  a  certificate  from  such  justice  that  such  oath  or  afiirmation 
has  been  duly  made,  shall  not  be  compelled  to  muster  or  perform 
military  duty,  except  in  cases  of  insurrection  or  invasion,  or  pay  any 
tax  for  said  exemption  ;  but  they  shall  be  subject  to  taxation  in  time 
of  insurrection,  invasion  or  war,  and  also  to  furnish  their  quota  of 
men  or  pay  an  equivalent. 

4.  The  captains  or  commandants  of  companies  shall  enrol,  and  Officers  to  en- 
keep  enrolled  on  their  muster  rolls,  all  within  the  limits  of  their  re-  retum'^of' ex^ 
spective  districts,  who  are  exempt  from  performing  militia  duty  byempts. 

law  except  in  time  of  invasion  or  insurrection,  and  shall  return  the 
number  of  exempts  in  their  annual  returns  to  the  commandants  of 
regiments,  who  shall  make  a  hke  return  of  all  exempts  in  their  re- 
spective regiments  in  their  annual  returns  to  the  brigadier  and  adju- 
tant generals,  regulations  for  which  annual  reports  are  hereinafter 
prescribed. 

5.  It  shall  not  be  lawful  for  any  captain  or  other  militia  officer  Free  persons  of 
in  this  State  to  enrol  any  free  persons  of  color,  except  for  musi- g°J.°jj"^*g°p^p^ 

Cians.  as  musicians. 

3.  1820,  c.  25.— 1806,  c.  70S,  s.  2.— 1833,  c.  16. 

4.  1S:«,  c.  7. 

5.  1S23,  c.  12-19. 


396 


MILITIA. 


[Chap.  LXXIII. 


Persons  enrol- 
led for  duty  to 
equip  them- 
selves. 


Forfeitures  for 
neglecting  to 
equip. 


How  the  in- 
fantry shall  be 
divided. 


Regiments, 
brigades  and 
divisions,  how 
distinguished. 


6.  Every  citizen  enrolled  and  notified,  as  is  directed  in  the  first 
section  of  this  act,  shall,  within  six  months  thereafter,  provide 
himself  with  a  good  musket,  smooth  bored  gun  or  good  rifle,  shot 
pouch,  and  powder  horn,  and  shall  appear  so  armed  and  accoutred, 
when  called  out  to  exercise  or  in  actual  service  ;  the  commissioned 
officers  shall  severally  be  armed  with  a  sword  or  hanger  or  an  es- 
pontoon  ;  and  every  citizen,  so  enrolled  and  providing  himself 
with  arms  and  accoutrements  as  herein  directed,  shall  hold  the 
same  exempt  from  all  suits,  executions,  or  sales  for  debts  or  for 
the  payment  of  taxes  ;  and  if  he  shall  fail  to  provide  himself  with 
arms  and  accoutrements,  as  herein  directed,  and  if  the  commis- 
sioned officers  of  his  company  shall  deem  him  in  sufficient  circum- 
stances to  equip  himself,  he  shall  forfeit  and  pay,  as  follows  :  for 
the  want  of  a  good,  serviceable  musket  or  rifle,  the  sum  of  fifty 
cents.  And  all  parents,  guardians  and  masters  shall  furnish  those 
of  the  mihtia,  who  shall  be  under  their  care  or  command,  with  the 
arms  and  equipments  above  mentioned,  under  the  hke  penalty  for 
each  neglect  :  Provided  such  guardian  shall  have  sufficient  in  his 
hands  belonging  to  his  ward  to  purchase  said  arms.  If  the  com- 
pany court  martial,  after  examination  on  oath,  shall  adjudge  any 
person  enrolled  to  be  incapable  of  providing  himself  with  arms  and 
accoutrements,  as  here  required,  they  shall  make  report  thereof  to 
the  next  regimental  or  battalion  court  martial,  as  the  case  may  be, 
who  may,  if  it  shall  appear  necessary,  exempt  such  person  from  the 
fines  here  imposed,  until  such  arms  and  accoutrements  shall  be 
provided  and  delivered  to  him  by  the  court  martial,  who  shall  take 
security  for  the  safe  keeping  of  such  arms  and  accoutrements  to  be 
returned  when  required. 

7.  The  infantry  shall  be  divided  into  divisions,  brigades,  regi- 
ments, battalions  and  companies  ;  each  division  shall  consist  of  at 
least  two  brigades  ;  each  brigade  of  at  least  four  regiments,  each 
county  forming  at  least  one  regiment ;  each  regiment,  when  con- 
venient, shall  consist  of  at  least  two  battalions  ;  each  battalion  of 
five  companies  ;  and  each  company  of  sixty  four  privates. 

8.  The  following  are  hereby  declared  to  be  the  regiments,  brig- 
ades and  divisions  of  the  infantry,  to  be  known  and  distinguished 
as  here  designated,  viz  :  — 


No.  divi- 
sions. 

Of  what  brigades 
composed. 

No.  of 
brigades. 

Of  what  regiments  composed. 

I. 

1st,  18th. 

1, 

C    1,    2,     3,    4. 

18, 

I    5,    6,  10,    9. 

2. 

4th,  14th. 

4, 

(  41,  44,  33,  34,  35,  32. 

14, 

I  53,  54,  42,  43,  51,  93. 

3. 

6th,  16th. 

6, 

(  45,  47,  48,  49,  55,  56,  94. 

16, 

I  59,  37,  38,  50. 

4. 

7th,  10th,  11th, 

7, 

C  63,  64,  87,  88. 

10, 

\  76,  77,  78,  70,  71. 

11, 

(  68,  69,  60,  61,  62,  95. 

6.  1806,  c.  708,  s.  1,  3  and  9. 

7.  1806,  c.  708,  s.  3. 

8.  Adjutant  general's  report. 


L/HA.P. 

LAXlll.J 

MILITIA. 

5. 

15th,  19th. 

15, 

(  79,  80,  81,  92,  52,  89. 
I  90,  86,  82,  83,  84. 

19, 

6 

3d,  12th. 

3, 

(  30,  39,  24,  31. 

12, 

I  25,  26,  40,  28. 

7. 

5th,  17th. 

5, 

(  20,  21,  13,  14,  15,  16. 

17, 

I  29,  35,  36,  22,  23. 

8. 

2d,  13th. 

2, 

^  17,  18,  19,  27. 

13, 

I  12,  11,     8,  17. 

9. 

8th,  9th. 

8, 

(  67,  91,  65,  66,  57,  58,  96 

9, 

I  46,  72,  73,  74,  75. 

397 


No.  of 
Regt. 

How  distingnished  in 

No.  of 

How  distinguished  in 

Counties. 

Counlieswhere  there  are 
mure  than  one  Kegt. 

CounlieB. 

Regt, 
48 

CuuMties  wliere  there  are 
more  than  one  Kegt. 

Currituck, 

1 

Orange, 

Hawfields, 

Camden, 

2 

a 

49 

Haw  River, 

Pasquotank, 

3 

^ 

Person, 

50 

Perquimons, 

4 

Richmond, 

51 

First, 

Chowan, 

S 

(( 

93 

Second, 

Gates, 

6 

Iredell, 

52 

South, 

Tyrrel, 

7 

cc 

89 

North, 

Washington, 

8 

Anson, 

53 

Lower, 

Bertie, 

9 

u 

54 

Upper. 

Hertford, 

10 

Randolph, 

55 

West,' 

Hyde, 

11 

11 

56 

East, 

Beaufort, 

12 

Guilford, 

57 

West, 

Martin, 

13 

a 

58 

East, 

Halifax, 

14 

Upper, 

Caswell, 

59 

u 

15 

Lower, 

Montgomery, 

60 

East, 

Northampton, 

16 

K 

61 

West, 

Carteret, 

17 

Cabarrus, 

62 

Craven, 

18 

Rowan, 

63 

Fork, 

Pitt, 

19 

11 

64 

Lower, 

Edgecomb, 

20 

Upper, 

Stokes, 

65 

North, 

a 

21 

Lower, 

11 

66 

South, 

Nash, 

22 

Rockingham, 

67 

Lower, 

Warren, 

23 

11 

91 

Upper, 

Onslow, 

24 

Mecklenburg, 

08 

North, 

Jones, 

25 

a 

69 

South, 

Lenoir, 

26 

Lincoln, 

70 

Upper, 

Greene, 

27 

11 

71 

Lower, 

Johnston, 

28 

Surry, 

72 

North, 

Franklin, 

29 

11 

73 

South, 

New  Hanover, 

30 

Wilkes, 

74 

Lower, 

Duplin, 

31 

C( 

75 

Upper, 

Sampson, 
Cumberland, 

32 

Rutherford, 

76 

West, 

33 

Lower, 

(( 

77 

South, 

(I 

34 

Upper, 

« 

78 

East, 

Wake, 

35 

East  of  Raleigh, 

Burke, 

79 

Morganton, 

it 

36 

West  of  Raleigh, 

11 

80 

Lower  Creek, 

Granville, 

37 

North, 

11 

81 

Pleasant  Gardens, 

(( 

38 

South, 

iC 

92 

Toe  River, 

Brunswick, 

39 

Buncombe, 

82 

Caney  River, 

Wayne, 

40 

11 

83 

Asheville, 

Bladen, 

41 

i( 

84 

South, 

Robeson, 

42 

Lower, 

Columbus, 

85 

It 

43 

Upper, 

Haywood, 

86 

Moore, 

44 

Davidson, 

87 

Lower, 

Chatham, 

45 

Lower, 

(1 

88 

Upper, 

(( 

94 

Upper, 

Macon, 

90 

Ashe, 

46 

Cabarrus, 

1 

Volunteer  Regt. 

Orange, 

47 

Hillsborough, 

Stokes, 

2 

Do            do. 

9.   The  officers  of  the  infantry  shall  be  as  follows  :  to  each  di-  Officers  of  the 
vision  there  shall  be  one  major  general,  and  two  aids  de  camp  with  th^r  grade  and 
the  rank  and  pay  of  major,  one  division  inspector,  and  one  division  how  to  be  ap- 
quarter  master,  with  the  rank  and  pay  of  lieutenant  colonel,  to  be  ^^^^^  ■ 


9.  1806,  c.  708,  s.  3.— 1814,  c.  867.— 1816,  c.  924. 


393 


MILITIA. 


[ClIAP.  LXXIII. 


Adjutant  gen- 
eral to  be  ap- 
pointed. 


Govenior  may 
appoint  four 
aids  de  camp. 


Unifortn  of  of- 
ficers. 


Penalty  on  of- 
ficers for  re- 
signing or  fail 


appointed  by  the  major  general  and  commissioned  by  the  governor  ; 
to  each  brigade  one  brigadier  general,  and  one  aid  de  camp  with 
the  rank  and  pay  of  major,  one  brigade  inspector  with  the 
rank  and  pay  of  major,  one  hospital  surgeon  and  two  mates^ 
and  one  assistant  deputy  quarter  master  general  with  the  rank  and 
pay  of  a  captain,  to  be  appointed  by  the  brigadier  general  and  com- 
missioned by  the  governor  ;  to  each  regiment  one  colonel  and  lieu- 
tenant colonel  and  one  major  ;  there  shall  also  be  to  each  regiment 
one  adjutant  and  one  quarter  master,  who  shall  be  commissioned 
officers  with  the  rank  of  lieutenant,  one  pay  master,  one  surgeon 
and  one  surgeon's  mate,  one  sergeant  major,  one  drum  major,  and 
one  fife  major,  all  to  be  appointed  by  the  commanding  officer  of 
the  regiment,  and  the  adjutant  shall,  when  necessary,  discharge  the 
duties  heretofore  assigned  to  the  brigade  inspectors  within  his  regi- 
ment, for  which  service  he  shall  be  allowed  by  the  court  martial  a 
reasonable  compensation,  if  they  think  proper,  to  be  paid  out  of 
the  fines  collected  ;  to  each  company  there  shall  be  one  captain, 
three  lieutenants,  one  ensign,  four  sergeants,  four  corporals,  one 
drummer,  and  one  fifer  ;  the  commissioned  officers  of  each  com- 
pany shall  be  recommended  by  the  field  officers  of  the  regiment  to 
the  governor,  who  is  requested  to  issue  commissions  to  fill  such 
appointments,  according  to  the  said  recommendations  ;  the  non- 
commissioned officers,  to  wit,  sergeants,  corporals,  drummers  and 
fifers,  shall  be  appointed  by  the  captain  of  each  company  ;  all  com- 
missioned officers  of  the  same  rank  shall  take  precedency  on  com- 
mand according  to  the  date  of  their  commissions,  and  where  two 
or  more  of  the  same  grade  bear  an  equal  date,  then  their  rank  shall 
be  determined  by  lot,  to  be  drawn  by  them  before  the  commanding 
officers  of  the  division,  brigade,  regiment,  battalion,  company  or 
detachment.  The  general  and  field  officers,  and  all  other  commis- 
sioned officers,  shall  reside  within  the  division,  brigade,  regiment, 
battalion  or  company  district,  which  they  respectively  command  : 
an  adjutant  general  of  the  militia  shall  be  appointed  and  commis- 
sioned by  the  governor  of  the  State,  who  shall  rank  as  a  brigadier 
general,  and  who  shall  receive  a  salary  of  two  hundred  dollars  per 
annum  for  his  services,  besides  a  reimbursement  of  his  expenses, 
as  hereinafter  provided,  to  be  paid  quarterly  by  the  treasurer  by  a 
warrant  from  the  governor  :  Provided  hoivever,  that  no  major  gen- 
eral, brigadier  general  or  colonel  shall  be  appointed  or  act  as  adju- 
tant general.  The  governor  for  the  time  being  shall  be  entitled  to 
four  aids  de  camp,  whom  he  may  appoint  and  commission  with  the 
rank  of  colonel.  The  commissions  hereby  authorized  and  directed 
to  be  granted  to  the  several  aids  de  camp  of  the  governor,  major 
generals  and  brigadier  generals,  shall  be  held  during  the  pleasure  of 
the  officers  to  whom  such  aids  de  camp  may  be  attached. 

10.  The  uniform  prescribed  for  the  officers  of  the  United  States 
shall  be  the  uniform  to  be  worn  in  future  by  the  commissioned 
officers  of  this  State. 

11.  If  any  officer,  below  the  rank  of  general,  shall  resign,  or  fail 
to  equip  himself  according  to  law  within  twelve  months  from  the 


10.   1S13,  c.  850,  s.  13. 
11-  Amendment. 


Chap.  LXXIIL]  militia.  399 

date  of  his  commission  ;  if  a  colonel,   he  shall  forfeit  and  pay  the  ing  to  equip 
sum  of  fifty  dollars  ;  if  a  lieutenant  colonel,  he  shall  forfeit  and  pay  ^fthin^i2^^ 
the  sum  of  forty  dollars  ;  if  a  major,  the  sum  of  thirty  dollars  ;  if  a  months. 
captain,  the  sum  of  twenty  dollars  ;  if  a  first  Heutenant,  the  sum  of 
fifteen,  if  a  second  or  third  lieutenant  or  ensign,  the  sura  of  ten 
dollars  ;  to  be  sued  for  and  recovered  by  the  adjutant,  in  the  name 
of  the  governor,  and  to  be  accounted  for  to  the  pay  master.     When  How  major  and 
there  shall  occur  a  vacancy  in  the  office  of  maior  general,   the  ad-  ^'"gadier  sen- 

,  *  •         .  6r3.1s      colonels 

jutant  general  shall  issue  orders  to  the  brigadier  generals  in  that  and  other  field 
division,  who  shall  forthwith  issue  orders  to  the  colonels  of  their  °,^''^f''?  ^^^i^  ^^ 
respective  regiments  to  call  together  the  commissioned  officers  of  commissioned. 
their  regiments,  at  the  usual  place  of  regimental   musters,   and  at 
such  time  as  the  brigadier  general  shall  direct,  and  they  shall  pro- 
ceed by  ballot  to  elect  a  major  general  of  that  division,  and  it  shall 
be  the  duty  of  each  colonel  to  transmit  to  the  brigadier  general  of 
his  brigade  a  fair  statement  of  the  votes  so  polled,  within  ten  days 
after  said  election,  and  the  brigadier  general  shall  compare  the  votes 
transmitted  to  him  by  the  colonels  in  his  brigade,  and  shall  trans- 
mit to  the  adjutant  general  a  fair  statement  thereof,  and  it  shall  be 
the  duty  of  the  adjutant  general  to  compare  the  statements  made  to 
him  by  the  brigadier  generals,   and  make   known  to  the  governor 
the  person  for  whom  the  highest  number  of  votes  may  have  been 
given,  and  a  commission  shall  be   issued  by  the  governor  ;  and  if 
the  office  of  major  general  shall  be  vacated  by  death  or  removal,  it  jj^^  they 
shall  be  the  duty  of  the  brigadier  general,   in  whose  brigade  the  shall  resign, 
major  general  lived,  to  inform  the  adjutant  general  thereof,  and  all  notiUcation'of 
resignations  of  major  generals  shall  be  made  to  the  adjutant  general,  vacancies  to  be 
and  by  him  made  known  to  the  governor.      When  a  vacancy  shall  whoni.^"     ^ 
occur  in  the  office  of  brigadier  general,   it   shall  be  the  duty  of  the 
major  general  of  that  division,  to  issue  orders  to  the  several  col- 
onels in  that  brigade  to  call  together  the  commissioned  officers  of 
their  respective  regiments,  at  the  usual  place  of  review  and  at  such 
time  as  the  major  general  shall  direct,  who  shall  proceed  by  ballot 
to  elect  a  brigadier  general  of  that  brigade,  and  the  several  colonels 
shall  transmit,  within  ten  days,  a  fair  statement  of  the  votes  given 
to  the  major  general,  whose  duty  it  shall  be  to  compare  the  several 
returns,  so  made  to  him,  and  inform  the  governor  who  shall  have 
received  the  highest  number  of  votes,  and  the  governor  shall  issue 
a  commission  ;  and  if  the  office  of  brigadier  general  shall  become 
vacant  by  death  or  removal,  it  shall  be  the  duty  of  the  colonel, 
senior  in  commission,  of  the  county  wherein  said  brigadier  general 
lived,  to  inform  the  major   general   thereof,   by  mail  or  otherwise 
forthwith,  and  all  resignations  of  brigadier   generals  shall  be  made 
to  the  major  general,   and    by  him  made   known   to  the  governor. 
If,  on  comparing  the  votes  given  in  for  a  major  general  there  be  a 
tie,  the  governor  shall  make  the  appointment  from  the  two  highest 
candidates  ;  and  if  there  be  a  tie  in  the  votes  given  in  for  brigadier 
general,  the  major  general  shall  make   the   appointment  from  the 
two  highest  candidates.     When  a  vacancy  shall  occur  in  the  office 
of  colonel,  lieutenant  colonel  or  major,  the  senior  officer  in  com- 
mand attached  to  that  regiment  shall  call  together  the  commissioned 


400  MILITIA.  [Chap.  LXXIII. 

officers,  at  the  usual  place  of  regimental  review,  and  at  such  time 
as  he  may  think  proper,  and  they  shall  proceed  to  elect  by  ballot 
officers  to  supply  said  vacancies,  and  a  fair  statement  shall  be 
transmitted  by  the  officer,  highest  in  command,  to  the  brigadier 
general  of  his  brigade,  of  the  officers  that  have  been  elected,  and 
it  shall  be  the  duty  of  the  brigadier  general  to  inform  the  governor 
thereof,  from  whom  a  commission  or  commissions  shall  issue  ;  all 
resignations  of  colonels,  heutenant  colonels  or  majors  shall  be  made 
to  the  brigadier  general  of  that  brigade  ;  and 'in  case  of  vacancy  in 
any  of  those  offices  by  resignation,  the  brigadier  general  shall  order 
an  election  as  before  directed,  and  shall  inform  the  governor  of 
such  resignation  ;  when  any  commission  for  a  major  general  or 
brigadier  general  is  issued  by  the  governor,  under  the  provisions 
of  this  section,  it  shall  be  the  duty  of  the  adjutant  general  to  have 
the  same  published  in  one  of  the  papers  in  the  city  of  Raleigh. 
iPodce  onhllr  ^'^'  ^^®"  ^"^  officer,  commanding  a  division,  brigade  or  regi- 
absence.  ^^^  ment,  shall  have  occasion  to  be  absent  from  his  usual  residence 
two  months  or  more,  it  shall  be  his  duty  to  notify  the  officer,  next 
entitled  to  the  command,  of  such  his  intended  absence,  and  also 
his  next  superior  officer  in  command. 
Officers  to  de-  ^^^  ^^^  officers,  who  shall  have  in  their  hands  either  money  or 
liver  to  their     papers  received  by  virtue  of  their  appointments,  shall,  when  thev 

successors  1  1     •        /T*  111"  J 

money  or  '^^^^  ^^^ir  office,  pay  and  deliver  the  same  to  their  successors  in 

papers.  office,  under  the  penalty  of  one  hundred  dollars,  to  be  recovered 

in  the  name  of  the  governor,  and  apphed  as  hereinafter  directed. 
Rules  of  dis-         14.    The  rules  of  disciphne  and  system   of  tactics,   which  are 
"P  "^^-  now  or  hereafter  may  be   approved   and  prescribed  by   congress, 

shall  be  and  the  same  are  hereby  established,  as  the  rules  for  the 
discipline  of  the  militia  of  this  State,  except  such  aherations  as 
shall  be  rendered  necessary  by  unavoidable  circumstances, 
t^ias^how^'iaid      \^-   '^^^  regimental  or  battahon  courts  martial,  of  the   several 
off.   '  regiments  or  battalions  in  this  State,  shall  have  power  so  to  lay  off 

the  several  captains'  districts,  as  to  render  them  as  convenient  to 
the  inhabitants  as  a  due  regard  to  the  requisite  number  of  persons 
liable  to  perform  mihtary  duty  will  permit  ;  and  they  may  at  any 
subsequent  court  martial  so  alter  or  consolidate  their  respective 
districts,  as  to  create  new  ones,  or  unite  portions  of  districts  to- 
gether, so  as  to  form  other  and  separate  districts,  as  a  majority  of 
the  court  martial  may  think  proper  ;  and  all  allotments  or  altera- 
tions shall  be  duly  recorded  by  the  judge  advocate  in  the  books  of 
the  regiment  or  battalion  :  where  a  small  number  of  inhabitants  are 
so  detached,  by  water  courses  or  mountains,  as  to  render  their  at- 
tendance inconvenient  at  any  place  where  they  have  been  accus- 
tomed to  muster,  and  where  such  detached  sections  contain  a  pop- 
ulation of  thirtysix  men,  liable  to  perform  military  duty,  it  shall  be 
the  duty  of  the  regimental  or  battalion  court  martial  to  lay  that  sec- 
tion off  into  a  separate  captain's  district,  and  to  appoint  officers  in 
the  same  manner  as  in  other  districts  :  and   where  there  shall  be 


12.  1806,  c.  708,  s.  18. 

13.  1806,  c.  708,  s.  19. 

14.  1806,  c.  708,  S.  5. 

15.  1831,  c.  8,  amended. 


CpIAP.    LXXIIL]  MTLITIA.  401 

two  or  more  regiments  in  any  county  within  this  State,  a  majority  Boundary  lines 
of  the  officers,  composing  such  regiments,  shall  have  full  power  to  o}^\^|™^g® 
alter  and  regulate  the  boundary  lines  of  their  regiments,  and  in  the  county,  how 
event  the   officers  should  not  agree  with  respect  to  said  lines,  it "^'^^  eatered. 
shall  be  the  duty  of  the  county  court,  a  majority  of  the  justices 
being  present,  to  establish  the  said  lines  ;  and  when  so  fixed,  the 
judge   advocate  of  each  regiment  shall  spread  the  same  on  their 
journals. 

16.  Every  captain  or  commandins;  officer  of  a  company  shall,  Regulations  as 

1  .    •'         '  ,       1  ^  1        1      •        ^     1  1  to  company 

at  least  twice  a  year,  at  such  place  as  may  be  designated  by  a  ma- musters. 
jority  of  his  company,  and  agreeably  to  the  order  of  the  command- 
ing officer,  muster,  train,  and  exercise  such  company,  and  shall 
cause  them  to  remain  under  arms  at  least  two  hours  on  every  day, 
by  himself,  or  one  of  his  lieutenants,  or  his  ensign,  and  then  and 
there  teach  them  the  manual  exercise,  and  the  proper  company  ma- 
noeuvres, at  which  muster  the  officers  and  privates  shall  appear 
armed  and  equipped  as  herein  before  required.  It  shall  not  be 
lawful  for  the  captains  to  call  their  men  together,  without  their 
consent,  for  the  purpose  of  company  musters,  more  than  twice  in 
each  year,  except  in  cases  of  insurrection  or  invasion  :  Provided, 
that  this  enactment  shall  not  apply  to  volunteer  companies  :  And 
provided  further,  that  when  any  person  enters  into  the  rank  in  the 
extra  musters,  he  shall  be  subject  to  the  same  discipline,  and  gov- 
erned by  the  same  rules  and  penalties,  as  govern  them  in  their  reg- 
ular musters.  If  any  captain  or  commanding  officer  of  a  company 
shall  fail  or  neglect  to  muster  his  company,  as  herein  directed,  he 
shall  forfeit  and  pay  the  sum  of  six  dollars,  to  be  adjudged  by  the 
next  regimental  court  martial  ;  and  if  he,  or  any  commissioned  offi- 
cer of  the  company,  shall  fail  to  appear  equipped,  as  directed,  at 
the  said  muster,  the  officer  so  failing  shall  pay  the  sum  of  four  dol- 
lars ;  and  if  a  non-commissioned  officer  or  private  shall  fail  to  attend 
at  a  company  muster,  he  shall  forfeit  and  pay  a  sum  not  exceeding 
two  dollars  nor  less  than  one  dollar,  and  if  he  attend  without  being 
armed  and  accoutred,  he  shall  pay  a  sum  not  exceeding  one 
dollar  nor  less  than  fifty  cents,  which  sum  shall  be  adjudged  by  the 
company  court  martial,  according  to  the  circumstances  of  the  de- 
linquent :  Provided,  that  every  absentee  shall  be  allowed  until  the 
next  succeeding  company  muster  to  make  his  excuse,  which  shall 
always  be  on  oath,  the  officer  nighest  in  rank  present  being  hereby 
authorized  to  administer  the  same.  When  companies  consist 
principahy  of  persons  residing  within  any  town,  and  the  muster 
ground  is  at,  or  within  one  mile  of,  said  town,  all  fines  imposed  by 
this  act  for  not  appearing  at  reviews  and  ip,usters,  or,  if  appearing, 
not  being  properly  armed  and  accoutred,  shall  be  doubled. 

17.  The  commissioned  officers  of  the  company,  or  any  two  of  Company 

them,  after  each  and  every    muster  of  the  company,  shall,  on  the  S?"'"'^.'^'^'^^^^'- 

,  .  •'     .  ,        ,  111  •      How  to  pro- 

same  day,  meet  in  court  martial,  and  proceed  to  try  and  determine  ceed. 

on  all   cases  which  may   come  before  them,  and  on    conviction  of 

any  delinquent,  the  officer  highest  in   rank    present  shall  enter  up 

16.  1806,  c.  708,  s.  S  and  24.— 1827,  c.  11.-1829,  c  31,  s.  2.— 1832,  c.  5,  s.  3. 

17.  1306,  c  703,  s.  12.-1813,  c.  850,  s.  4. 

VOL.  I.-  51 


402 


MILITIA. 


[Chap.  LXXIII. 


Appeal  al- 
lowed. 


Company  mu- 
sicians, how  ap 
pointed,  and 
their  privileges 


Overseers  of 
roads  not  to 
order  out 
hands  on  days 
of  company 
muster. 
Captains  of 
companies  to 
make  returns. 


Regimental  or 
battalion  mus- 
ters. 


judgment,  and  issue  writs  of  execution  against  the  goods  and 
chattels  and  body  of  the  deUnquent,  as  in  judgments  in  civil  cases, 
directed  to  the  constable  of  that  district,  which  constable  shall 
proceed  to  execute  the  same  in  the  same  manner  and  under  the 
same  rules,  as  are  established  by  law  for  the  government  of  con- 
stables in  their  duty  in  civil  cases,  and  shall  be  allowed  the  same 
fees  for  his  services,  and  shall  make  his  return  to  the  next  company 
court  martial.  The  right  of  appeal  shall  be  allowed  from  a  com- 
pany to  a  battalion  or  regimental  court  martial,  but  no  appeal  shall 
be  granted,  unless  the  person,  praying  the  same,  shall  give  security, 
to  be  approved  by  the  captain  or  presiding  officer  of  the  company 
court  martial,  to  abide  by  the  decision  of  the  battalion  or  regimen- 
tal court  martial,  which  appeal  shall  be  taken  in  like  manner  as 
appeals  from  the  justices  of  the  peace  to  the  county  courts,  and 
shall  be  proceeded  on  in  like  manner  by  the  battalion  or  regimental 
courts  martial. 

18.  For  the  encouragement  of  military  music,  it  shall  and  may 
be  lawful  for  the  captain  of  each  and  every  raihtary  company  of 
infantry  in  this  State,  to  select  from  among  the  persons  enrolled  in 
their  respective  companies,  one  fifer  and  one  drummer,  each  being 
properly  qualified  for  their  appointment,  which  selection  shall  be 
made  under  the  direction  and  with  the  approbation  of  the  field 
officers  belonging  to  the  regiment,  to  which  such  company  is 
attached  ;  and  when  such  selection  of  musicians  is  made,  it  shall 
be  the  duty  of  the  field  officers  to  grant  a  certificate  to  such  musi- 
cians of  their  appointment,  and  the  county  court  of  the  county,  in 
which  such  companies  respectively  are,  shall  exempt  and  discharge 
such  musicians,  so  selected,  during  their  continuance  in  appoint- 
ment, from  serving  on  all  juries,  from  working  on  the  public  roads, 
and  from  the  payment  of  poll  taxes  ;  such  musicians  shall  be  re- 
movable at  the  pleasure  of  the  field  officers  of  the  regiment,  to 
which  they  severally  belong,  and  shall  attend  each  and  every  mus- 
ter of  their  respective  companies,  and  also  the  muster  of  the  offi- 
cers, and  perform  the  duties  of  their  appointment,  under  the  penalty 
of  four  dollars  for  each  and  every  neglect,  to  be  collected  and 
applied  in  the  same  manner  that  other  fines  are. 

19.  No  overseer  of  any  road  in  this  State  shall  order  the  hands 
under  him  to  work,  on  the  days  previously  appointed  for  musters 
by  the  captain  of  the  company,  to  which  such  hands  belong. 

20.  The  captains  shall,  at  the  several  musters  or  within  thirty 
days  after  being  required  so  to  do,  or  immediately  if  required  at  a 
regimental  or  battahon  muster,  make  a  return  of  their  respective 
companies  to  the  commanding  officer  of  the  regiment  or  battalion, 
under  penalty  of  ten  dollars  in  the  first  case,  or  disobedience  of 
orders  in  the  second  case. 

21.  There  shall  be  in  every  year  at  least  one  regimental  or  bat- 
talion muster,  to  be  ordered  by  the  commandant  of  such  regiment 


IS.  1312,  c.  828,  s.  14. 

19.  1812,  c.  828,  s.  12. 

20.  1806,  c.  708,  s.  10. 

21.  1806,  c.  708,  S.  6. 


Chap.  LXXIIL]  militia.  ,  403 

or  battalion,  at  such  place  as  may  have  been  designated,  or  may 
hereafter  be  designated  by  a  majority  of  the  commissioned  officers 
of  such  regiment  or  battalion,  at  which,  such  commanding  officer 
shall  cause  the  militia  to  be  exercised  at  least  two  hours  on  each 
day. 

22.  If  any  officer  shall  fail  to  attend  at  any  review,   regimental  Penalty  on  of- 
or  battalion  muster,  or,  attending,  be  not  armed  as  required  by  this  See rs  failing  to 

.        ,     „  .     .        1     c  •   1     r    V  •  1  attend  reviews 

act,  he  shalJ,  on  conviction  beiore  a  court  martial,  lorieit  and  pay,  or  musters. 
if  a  field  officer,  the  sum  of  twenty  dollars  ;  if  a  commissioned 
officer  under  that  grade,  the  sum  of  ten  dollars  ;  and  every  non- 
commissioned officer  or  private,  who  shall  fail  to  attend  such 
review  or  muster,  shall,  on  conviction,  pay  such  sum  as  shall  be 
adjudged  against  him  by  the  commissioned  officers  of  the  company, 
to  which  he  belongs,  not  exceeding  four  dollars  nor  less  than  one 
dollar,  to  be  ascertained  at  the  next  company  muster,  and,  when 
collected,  to  be  accounted  for  with  the  court  martial,  or,  if  appear- 
ing, be  not  armed  as  by  law  directed,  shall  for  such  default  forfeit 
and  pay  a  sum  not  exceeding  one  dollar  and  fifty  cents  nor  less 
than  fifty  cents,  to  be  adjudged  and  accounted  for  as  aforesaid. 

23.  The  commanding  officer  of  each  regiment  or  battalion  shall  Commandants 
eive  to  the  coraraandins:  officers  of  the  companies,  under  his  com- ?^ '^^,^™.*''^''®' 

o  ^^  ^  I  ^J  ^  etc.  to  sfive 

mand,  not  less  than  ten  days  notice  of  the    battalion  or  regimental  notice  of  re- 
musters  or  reviews,  which  may  at  any  lime  be  ordered.  views  or  mus- 

24.  Every  commissioned  officer  of  the  infantry,  by  appointment  commissioned 
of  the  commanding   officer  of  each  regiment,  shall  meet  the  day  officers  of  reg- 
before  that,  on  which  the  commanding  officer  of  such  regiment  or  ™ g^^foj  g^-^" 
battalion  has  appointed  for  holding  of  reviews  or  regimental  mus- ercise  the  day 
ters,  in  their  respective   counties,    where   the  said  commissioned  Q^^'^g^gJ'*^^ 
officers  of  infantry  shall  be  exercised  by  the  adjutant,  or   by  the 
commanding  officer  of  such  regiment  or  battalion,  at  least  three 

hours,  when  and  where  they  shall  be  instructed  in  all  matters  of 
field  exercise  and  discipline,  according  to  the  system  which  now  is 
or  may  hereafter  be  established  by  law.  And  any  commissioned 
officer,  who  shall  fail  or  neglect  to  appear  at  the  time  and  place, 
so  appointed  by  the  commandant  of  his  regiment  or  battalion,  as 
required  by  this  section,  or,  if  appearing,  be  not  armed  and  equip- 
ped as  by  this  act  directed,  when  at  any  review  or  parade,  such 
commissioned  officer,  so  failing  and  neglecting,  shall  forfeit  and  pay 
the  same  sum,  which  such  commissioned  officer  would  be  com- 
pelled to  pay,  in  cases  of  failure  and  neglect  at  any  regimental  or 
battalion  reviews  or  parades,  and  the  same  shall  be  recovered  in 
the  same  manner  and  the  money  applied,  as  in  other  like  cases  di- 
rected by  this  act,  and  such  commissioned  officer  shall  in  every 
instance  whatever  be  subject  to  the  same  punishment  for  neglect 
of  duty  or  disobedience  of  his  superior  officers,  as  such  commis- 
sioned officer  would  be  subject  to  when  in  actual  military  service. 

25.  If  any  officer  shall  suffer  himself  to  be  intoxicated,  or  be- Penalties  on of- 

•'  ncers  and  pri- 

22.  1806,  c  705,  s.  8. 

23.  18i;j,  c.  S50,  s.  7. 

24.  ISOG,  c.  708,  s.  16. 

2.5.  1806,  c.  708,  s.  8  and  9. 


404  MiLTTiA.  [Chap.  LXXIII. 

vates  for  mis-  have  in  a  riotous  or  disorderly  manner,  when  required  to  be  on  du- 
aving.  ^^^  ^j,  j]jgQ]jgy  jjjg  orders  of  his  commanding  officer,  he  shall  either 
be  fined  and  reprimanded  by  the  court  martial,  or,  at  their  discre- 
tion, shall  be  cashiered  :  Provided^  he  shall  not  be  cashiered  but 
by  a  court  martial  regularly  detailed  for  his  trial  as  hereinafter  di- 
rected. If  any  non-commissioned  officer  or  private  shall,  during 
the  time  of  muster,  resist  his  commanding  officer  or  refuse  to  obey 
his  lawful  commands,  if  a  non-commissioned  officer,  he  shall  be 
kept  under  guard  during  such  muster,  and  fined  at  the  discretion 
of  the  court  martial  not  exceeding  two  dollars. 
Persons  on  ^^-  If  any  pp^son,   liable  to   perform  duty,   shall  appear  at  or 

muster  ground  near  the  parade  ground,  during  the  term  of  any  review  or  muster, 
dmy"^to°be  ar-  ^^^  shall  not  take  his  proper  station  and  perform  the  duties  requir- 
rested.  ed  of  him  by  law,  or  behave  himself  in  a  disorderly  manner,  while 

on  parade,  it  shall  be  the  duty  of  the  commanding  officer  of  the 
regiment  or  corps  to  order  the  said  person  under  guard,  there  to 
be  detained  during  the  time  of  exercise  or  the  service  then  per- 
forming, and  until  the  mihtia  are  discharged,  and  such  person  shall 
further  be  fined  at  the  discretion  of  the  court  martial. 
Officers  and  27.  No  officer  or  soldier,  directed   by  this  act   to  appear  and 

tendin^^mus-    ^ii^ster  as  aforesaid,  shall  be  liable  to  be  taken  or  arrested,  in  any 
ters  exempt      civil  action  or  process  whatever,  on  the  day  such  person  is  direct- 
civil' rases!  ^°    ed  to  appear,  or  in  a  reasonable  time  either  in  going  to,  continuing 
at,  or  returning  from  the  place  appointed  to  muster  or  appear,  but 
every  such  arrest  is  hereby  declared  to  be  void.     Every  person 
required  by  this  act  to  attend  musters  and  reviews,  going  to  or  re- 
Not  to  oav       turning  from  the  same,  shall  be  suffered  to  pass  over  any  toll  bridge 
tolls  or  fer-       or  toU  causeway,  and  shall  be  put  over  any  ferry,  without   delay, 
riages.  |-^.gg  f^Qm  any  charge  whatever.     If  any  ferryman  or  proprietor  of 

any  toll  bridge  shall  demand  pay  or  refuse  to  put  over  such  person, 
he  shall  forfeit  and  pay  for  every  such  offence  four  dollars,  to  be 
recovered  by  warrant  before  any  justice  of  the  peace  to  the  sole 
use  of  the  informer. 
Parents,  &c.  2S.   All  parents,  masters   and  guardians  within  this  State  shall, 

liable  for  fines,  jjnf]  j|jgy  gj-g  hereby  declared  to  be  liable  for   the  payment  of  any 
fines,  incurred  by  those  under  their   care,  as  well  for  non-attend- 
ance at  company,  battahon  or  regimental  musters  and  general  re- 
views, as  not  being  armed  and  equipped  as  herein  before  provided. 
Ret'imentaland      ^^'   '^^^  Commanding  officer  of  each  regiment  or  battalion  shall 
battalion  order  a  court  martial  to  be  held,  at  the  place  appointed  for  the 

Their^power  Cluster  of  the  same,  on  the  day  after  the  regimental  or  battalion 
and  duties.  muster,  or  on  the  same  day  if  convenient,  which  court  shall  con- 
sist of  a  majority  of  the  officers  of  the  regiment  or  battalion,  one 
of  whom  shall  be  a  field  officer,  and  two  of  the  grade  of  captain, 
and  the  highest  officer  in  rank  present  shall  be  president.  The  court 
shall  be  notified  to  their  duty  by  the  adjutant  of  the  regiment  or 
battalion,  by  a  roster  to  be  kept  by  him,  and  the  said  court  when 

26.  1806,  C.  708,  s.  25. 

27.  1806,  c.  708,  s.  21. 
23.  1803,  c.  749,  s.  5. 

29,  1606,  c.  708,  s.  11.— 1817)  C.  955. 


Chap.  LXXIII.]  militia.  405 

convened  shall  appoint  a  judge  advocate,  who  shall  himself  in  the 
presence  of  the  court  take  the  following  oath.  "  I,  A.  B.  do 
swear,  that  I  will  well  and  truly  perform  the  duties  of  judge  advo- 
cate of  this  court,  according  to  the  best  of  my  skill  and  ability  :  so 
help  me  God."  And  the  judge  advocate  shall  administer  the  fol- 
lowing oath  to  the  members  of  the  court  martial.  "  I,  A.  B.  do 
swear,  that  I  will  hear  and  determine  all  the  causes  which  may  come 
before  this  court,  and  that  I  will  faithfully  report  all  dehnquents  that 
come  within  my  knowledge,  that  I  will  account  for  all  fines  and  for- 
feitures by  me  collected  or  received,  and  in  all  cases  enforce  a 
due  execution  of  the  militia  laws  of  this  State,  to  the  best  of  my 
knowledge  and  ability  :  so  help  me  God."  They  shall  inquire  into 
the  age  and  ability  of  all  persons,  that  come  before  them  by  appeal, 
and  exempt  such  as  may  be  judged  incapable  of  service,  also  try 
and  decide  on  all  persons  charged  with  omission  or  commission, 
as  well  by  officers  as  by  j)rivates.  The  said  regimental  or  battalion 
court  martial  shall  hear  and  determine  all  appeals  from  the  company 
court  martial,  and  order  and  dispose  of  all  fines  for  buying  drums, 
fifes  and  other  implements  of  war,  for  the  use  of  the  company, 
where  the  same  shall  arise,  and  for  supplying  the  militia  with  arms 
and  accoutrements,  and  for  other  purposes,  that  will  promote  the 
good  thereof.  The  judge  advocate  shall  be  allowed  a  reasonable 
salary,  to  be  paid  out  of  the  fines,  for  his  services.  His  duty  shall 
be  to  write  at  length  the  proceedings  of  the  said  court.  For  all 
fines,  which  may  be  imposed  by  the  court  martial,  he  is  hereby 
authorized  and  required  to  enter  up  judgment  and  issue  execution, 
which  if  against  commissioned  officers  shall  be  directed  to  the  ad- 
jutant or  constable  ;  if  against  non-commissioned  officers,  or  pri- 
vates, shall  be  directed  to  a  constable  of  the  county,  to  which  the 
delinquent  belongs  ;  the  constable  or  adjutant  shall  proceed  to 
distrain  and  sell,  in  the  same  manner,  and  under  the  same  rules  as 
are  established  by  law  for  the  government  of  constables  in  their 
duly  in  civil  cases,  and  shall  be  allowed  the  same  fees  for  their 
services.  The  adjutant  or  constable  shall  in  all  cases  make  due 
returns  to  the  next  succeeding  court  martial,  and  in  case  of  failure 
of  such  adjutant,  sergeant  or  constable  to  do  the  several  duties,  as 
required  of  them  by  this  act,  in  collecting  and  accounting  for  all 
fines,  such  adjutant,  sergeant  or  constable,  as  the  case  may  be, 
shall  incur  a  penalty  or  fine  of  double  the  amount  that  such  adju- 
tant or  constable  was  bound  to  collect  and  account  for. 

30.  It  shall  be  the  duty  of  the  pay  master  to  demand  and  re-  Duty  of  pay 
ceive  of  the  adjutants,  sergeants,  constables  and  others,  who  may  ™^^ 
have  collected  fines  and  forfeitures,  and  distribute  the  same  agreea- 
bly to  the  directions  of  the  court  martial,  and  settle  his  accounts 
annually  with  the  judge  advocate  ;  and  the  pay  masters  respective- 
ly shall,  before  they  enter  on  the  duties  of  their  office,  give  bond 
and  sufficient  security,  in  the  sum  of  two  hundred  dollars,  payable 
to  the  commanding  officer  of  the  regiment  and  his  successors  in 
office,  for  the  faithful  accounting  for,  agreeably  to  law,  of  all  sums 
of  money  which  may  come  into  his  hands  by  virtue  of  his  appoint- 
so.   ISOG,  c.  703,  S.  12. 


406  MILITIA.  [Chap.  LXXIIL 

ment ;  and  it  shall  be  the  duty  of  the  commanding  officer  afore- 
said, under  the  penalty  of  two  hundred  dollars,  to  sue  for  and 
recover  the  same,  and  when  the  same  is  so  received  by  him,  apply 
it  as  is  already  by  law  directed,  and  the  several  pay  masters  shall 
be  allowed  a  reasonable  compensation  for  their  services  by  the 
court  martial.  In  case  there  shall  be  no  pay  master  appointed  by 
the  commandant  of  any  regiment,  then  and  in  that  case  each  com- 
mandant shall  perform  and  execute  the  duties  of  pay  masters  as 
above  required. 
iu^Tcour°t'^  31.  Every  officer,  at  the  first  meeting  of  the  court  martial  after 
martial  must  being  commissioned,  shall  take  and  subscribe  the  following  oath, 
take  an  oath,  j.^  j^g  administered  in  open  court  martial  by  the  judge  advocate,  or 
if  a  company  officer,  it  may  be  taken  before  the  commanding  officer 
of  the  regiment.  "  I  A.  B.  do  solemnly  swear,  that  I  will  execute 
the  office  of  according  to  the  rules  of  military  discipline 

and  the  laws  of  this  State,  to  the  best  of  my  knowledge  and  abil- 
ity, and  that  I  will  support  the  constitution  of  the   United    States 
and  of  this  State  :  so  help  me  God."    And  also  the  following  oath  : 
"I  A.  B.  do  swear,  that  I  Vkill,  at  the  court  martial  of  the  company 
to   which  I   belong,   duly  administer  justice,  and  apply  fines  and 
penalties  according  to  law  and  to  the  best  of  my   ability  without 
favor,  afl:ection  or  partiality  :  so  help  me  God."     No  officer  shall 
be  allowed  to  sit  in  a  regimental,  battalion  or  company  court  mar- 
tial, unless  he  shall  have  taken  and  subscribed  the  oaths  aforesaid. 
TOurfs^martial*       ^'^'   ^^  ^''  ^")'  regimental,  battalion  or  company  court  martial,  or 
against  delin-    company  of  the  officers,  there  shall  be  any  delinquents,  either  for 
quents.  non-attendance  or  not  being  properly  armed  and  accoutred,  or  for 

disorderly  conduct,  proclamation  shall  be  made  by  the  captain  or 
commanding  officer,  calling  the  names  of  all  delinquents  enrolled, 
that  they  attend  the  trial  at  the  following  company  court  martial, 
which  shall  be  deemed  a  legal  notice  :  if  field  officers,  or  officers  of 
the  regimental  staff,  such  notice  shall  be  given  by  the  commanding 
officer  or  adjutant  of  the  regiment  or  battahon,  or  to  the  officers 
assembled,  and  if  any  officer  or  private  has  an  excuse  to  offer  to 
the  court  martial,  he  may  send  his  affidavit  taken  before  a  civil 
magistrate,  or  produce  a  witness,  or  he  may  personally  appear  and 
make  oath  to  the  cause  of  his  dehnquency,  and  in  all  cases,  whether 
from  neglect  or  failure  of  the  officers  and  privates  at  regimental  or 
battalion  musters,  or  of  appeals  from  the  company  courts  martial, 
and  of  all  other  cases  of  which  the  regimental  courts  martial  have 
jurisdiction,  their  determination  shall  be  final. 
Courts  martial  33.  The  several  courts  martial  have  power  and  legal  authority 
may  adjourn,  jq  adjourn  from  day  to  day,  or  to  any  future  day,  when  it  shall  be 
the  duty  of  the  officers,  entitled  to  compose  the  same,  to  attend, 
under  the  penalties  by  law  established  in  other  like  cases  for  non- 
attendance,  and  at  which  time  the  unfinished  business  of  the  court 
may  be  acted  upon  :  If  there  should  not  meet  a  sufficient  number 
at  the  place  of  adjournment  to  form  a  quorum,  the  officer  ordering 
the  same  shall  have  power  to  continue  its  adjournments. 

31.  1S06,  c.  708,  s.  l."?.— 1808,  c.  749,  s.  3. 

32.  1S06,  c.  703,  s  14. 

33.  1806,  c.  708,  s  15. 


Chap.  LXXIIL]  militia.  407 

34.  It  shall  be  the  duty  of  each  commanding  officer  of  a  regl- Duties  of  com- 
ment, to  exact  and  enforce  regular  settlements  of  all  fines,  collected  ^(!^"g^of  °g^i. 
under  the  militia  laws,  from  the  several  persons,  charged  with  thementsand 
collection  thereof  whhin  his  regiment,  which  fines  shall  be  appro-  to  fines"*^^  ^ 
priated  as  directed  by  law,  and  it  shall  be  the  duty  of  each  captain 

or  commanding  officer  of  a  company  to  report  in  writing,  once  in 
every  six  months,  to  the  commanding  officer  of  the  regiment,  to 
which  he  belongs,  the  amount  of  fines  assessed  in  his  company 
within  that  period. 

35.  Every  commandant  of  a  regiment   shall,  at   least  once  in  Returns  to  be 
every  year,  on  or  before  the   25th  day  of  October,  make  a  return  ^^^^  by  the 

J    J         '  *^  ,  ,  comnia.n CI  tints 

to  the  brigadier  general  of  the  brigade  to  which  such  regiment  be-  of  regiments, 
longs,  and  shall  transmit  a  duplicate   of  the  same  to   the  adjutant 
general,  on  or  before  the  15th  day  of  November  in  every  year,  at 
the  bottom  of  which  he  shall  report,  whether  or  not  his  regiment 
was  reviewed  by  the  major  or  brigadier  general,  and  at  what  time. 

36.  It  shall  be  the  duty  of  a  major  general  to  review  his  division  Duties  of 
once  in  every  three  years,    and  a  brigadier   general  to  review  his  ^li°'senera"s^' 
brigade  once   in  every  two  yeai's,  the  several  corps  composing  a  as  to  reviews, 
division  or  brigade  to  meet  by  order  of  the  reviewing  general,  by 
regiments,  at  such  time  as  he  may  appoint,  and  at  the  usual  places 

of  regimental  musters,  in  their  respective  counties.  It  shall  be 
the  duty. of  the  major  and  brigadier  generals  to  give  fifty  days'  no- 
tice, by  order  to  the  commandants  of  their  regiments  or  brigades,  of 
the  time  of  the  review,  previous  to  such  reviev/  taking  place.  Any 
major  or  brigadier  general,  failing  to  give  notice  as  above  directed, 
shall  forfeit  and  pay,  for  every  offence,  the  sum  of  forty  dollars,  to 
be  recovered  before  any  jurisdiction  having  cognizance  thereof, 
one  half  to  the  use  of  the  county,  in  which  recovery  is  had,  and 
the  other  half  to  the  use  of  the  person  suing  for  the  sanje. 

37.  The  brigadier  general  of  each  brigade  shall  make  a  return  of  ^<^t"iy'\°^6 
his  brigade  to  the  major  general  of  his   division,  on  or  before  thcadicrand 
tenth  day  of  November  in  each  and  every  year,  and  shall  transmit  "^^J^"^  a'^'^®''^^^- 
a  duplicate  of  the  same  to  the   adjutant  general,  or   or   before  the 

fifteenth  day  of  November,  in  which  he  shall  state  when  his  brigade 
was  last  reviewed  by  the  major  general  of  his  division.  The  major 
general  shall  make  a  return  of  his  division  to  the  adjutant  general, 
on  or  before  the  annual  meeting  of  the  General  Assembly. 

38.  If  any  general  officer,  or  commandant  of  a  regiment,  shall  fail  Penalty  on  a 
to  review  his   division   or   brigade,  or  muster   his  regiment,  or  to  or"c^ommand^-'^' 
make  an  annual  return  of  his  division,  brisrade  or  regiment,  as  is  now  ant  of  a  regi- 
required  by  law,  or  if  any  major  or  brigadier  general  shall  fail  to  ^^'\o  °eview 
equip  himself,  it  shall  be  the   duty  of  the  governor   to  cause  the  or  "muster,  to 
adjutant  general  to  give  such  delinquent   officer  thirty  days'  notice  ^r'^^^^'Yepro'lfcV. 
of  his  neglect  of  duty,  and  if  such  delinquent  does  not,  within  forty  ly  equipped. 
days  thereafter,  render  a   satisfactory  excuse  for   such  neglect,  by 

showing  to  the  governor  that  such  delinquency  happened  in  conse- 

34.  1812,  c.  828,  s.  4. 

35.  1806,-  c.  708,  s.  10.— 1S03,  c  749,  s.  2. 

36.  1832,  c.  5,  s.  1.— 1317,  c.  943,  s.  1  and  2. 

37.  1806,  c.  70S,  s.  10  and  22. 

38.  1532,  c.  .5,  s.  1  and  2. 


408  MILITIA.  [Chap.  LXXIII. 

quence  of  indisposition,  absence  from  the  State,  or  other  sufficient 
cause,  it  shah  be  the  duty  of  the  governor  to  strike  his  name  from 
the  hst  of  officers,  and  when  the  governor  shall  thus  strike  the 
name  of  any  officer  from  the  list  officers,  he  shall  communicate  it 
to  the  adjutant  general,  who  shall  have  it  published  in  some  news- 
paper within  this  State,  and  issue  proper  notices  to  supply  the 
vacancy. 
Duty  of  the  39,   Jt  shall  be  the  duty  of  the  adjutant  general  to  distribute  all 

eral/°  ^^^'  orders  from  the  commander  in  chief  of  the  State  to  the  several 
corps  ;  to  attend  public  reviews,  if  required,  when  the  commander 
in  chief  of  the  State  shall  review  the  militia,  or  any  part  thereof; 
to  obey  all  orders  from  him  relative  to  carrying  into  execution  and 
perfecting  the  system  of  military  disciphne,  established  by  law  ;  to 
furnish  blank  forms  of  different  returns  that  may  be  required,  and 
to  explain  the  principles  upon  which  they  shall  be  made  ;  and  also 
to  furnish  blanks  of  such  returns  ;  to  demand  and  receive,  from  the 
several  officers  of  the  different  corps  throughout  the  State,  returns 
of  the  militia  under  their  command,  reporting  the  actual  situa- 
tion of  the  arms  and  accoutrements,  and  their  delinquencies,  and 
every  other  thing  which  relates  to  the  advancement  of  good  order 
and  discipline,  all  which  the  several  officers  of  the  divisions,  bri- 
gades, regiments  and  battalions  are  hereby  required  to  make,  in 
the  manner  herein  directed,  that  the  adjutant  general  may  be  duly 
furnished  therewith,  previous  to  the  biennial  meeting  of  the  Gen- 
eral Assembly,  from  all  which  returns  he  shall  make  proper  ab- 
stracts, and  lay  the  same,  with  a  report  of  the  general  state  of  the 
militia,  magazines  and  military  stores,  and  such  improvements  as 
he  may  think  necessary  for  the  advancement  of  discipline  and  ben- 
efit of  the  militia,  biennially  before  the  General  Assembly,  or  the 
commander  in  chief  of  the  State,  who'  is  required  to  lay  the  same 
without  delay  before  the  said  assembly.  And  the  adjutant  general 
shall  also  annually  make  a  return  of  all  the  militia  of  this  State  to 
the  president  of  the  United  States.  In  failure  of  which  recited 
duties,  he  shall  suffer  the  following  fines  and  penalties  :  for  not  at- 
tending all  public  reviews,  when  required  by  the  governor  or  com- 
mander in  chief  of  the  State,  fifty  dollars  ;  for  not  furnishing  blank 
forms,  as  required  by  this  act,  the  sum  of  ten  dollars  for  each  ne- 
glect, to  be  recovered  before  any  jurisdiction  having  cognizance 
thereof,  one  half  to  the  use  of  the  informer  and  the  other  half  to 
the  use  of  the  State  ;  for  not  distributing  all  orders  from  the  com- 
mander in  chief  of  the  State,  or  for  not  making  returns  as  required 
by  this  act,  upon  conviction  of  either  before  a  general  court  martial, 
to  be  ordered  by  the  governor,  he  shall  be  cashiered  ;  the  said  ad- 
jutant general  shall  be  compensated  for  the  expense  of  all  the  blank 
forms  of  returns,  necessarily  prescribed  in  his  department,  and  the 
postage  of  all  letters  to  and  from  him  in  his  capacity  as  adjutant  gen- 
eral, to  be  paid  to  him  by  the  treasurer  of  the  State,  on  the  adjutant 
general  producing  a  stated  account  of  the  same  by  him  certified  ; 
the  adjutant  general  shall  keep  a  roster  of  the  names  and  dates  of 
the  commissions  of  each  major  and  brigadier  general  in  this  Stats, 

39.   1806,  c.  7t)8,  s.  7.— 1808,  c.  749,  s.  2. 


Chap.  LXXIIL]  militia.  409 

likewise  the  counties  under  each  of  their  commands  respectively, 
designating  therein  the  numbers  of  each  division,  brigade  and  regi- 
ment, ready  at  all  times  for  immediate  inspection  ;  shall  at  least 
once  in  every  three  years  transmit  a  copy  of  this  roster,  certified 
by  him,  to  the  president  of  the  United  States,  to  the  governor  of 
this  State,  and  to  the  General  Assembly  ;  and  he  shall  from  time 
to  time  make  report  to  the  legislature  of  what  shall  be  done  by 
him  in  virtue  of  his  appointment,  and  accompany  such  report  with 
such  remarks,  as  may  by  him  be  deemed  necessary,  for  the  better 
regulation  and  improvement  of  the  militia  discipline  throughout  the 
State. 

40.  If  no  immediate  opportunity  offers  for  forwarding  orders  or  in  certain 
returns,  the  certainty  of  which  ensures  a  speedy  delivery  thereof,  cases  returns 
which   can  be  easily  ascertained  and  proved,  then  it  shall  be  the  and  orders  is- 
dutv  of  the  officer  issuing  the  order  or  making  the  return    (as  the  T^"^  ^^I°^M^ 

J  o  II-  1-1  the  post  oflice. 

case  may  be)  to  lodge  the  same,  properly  directed,  m  the  post 
office,  marked  on  the  back  "public  service,"  under  which  he  shall 
write  his  name  and  grade,  and  a  return  thus  made  shall  be  deemed 
sufficient  and  good  in  law. 

41.  The  governor  for  the  time  being  is  hereby  authorized  to^^?™"^™^^^ 
mitigate  or  remit  all  fines  and  penalties,  which  may  be  recovered  in  penalties, 
any  of  the  courts  of  justice  against  any  general  or  field  officer, 

arising  under  the  militia  laws  of  this  State. 

42.  There  shall  be,  in  each  brigade  of  militia  in  this  State,  one  Regiments  of 
regiment  of  cavalry  ;  there  shall  be  to  each  regiment  of  cavalry  one  be^formed     ^^ 
colonel,  one  lieutenant  colonel,  and  one  major,  to  be  appointed,  in  officered, 
case  of  vacancy,  by  joint  vote  of  both  houses  of  the  General  As-  ^l^'PP®'^'  ^^-. 
sembly,  and  commissioned   by   the  governor  for  the  time  being  ;-, 

and  out  of  the  militia,  enrolled  in  this  State,  there  may  be  formed, 
out  of  each  battalion  that  has  a  separate  muster,  at  least  one  troop, 
of  cavalry,  to  be  formed  of  volunteers,  which  shall  be  uniformly 
clothed  in  regimentals  at  their  own  expense,  the  color  and  fashion 
to  be  determined  by  the  field  officers  of  cavalry  of  the  regiment  or 
battahon  to  which  they  belong  ;  to  each  troop  one  captain,  two 
lieutenants,  one  cornet,  four  sergeants,  four  corporals,  one  saddler, 
one  farrier,  one  trumpeter,  and  no  less  than  twenty  four  dragoons. 
The  commissioned  officers  to  furnish  themselves  with  good  horses, 
at  least  fourteen  and  a  half  hands  high,  to  be  armed  with  a  sword 
and  pair  of  pistols,  the  holsters  of  which  shall  be  covered  with  bear 
skin  ;  and  each  dragoon  shall  furnish  himself  with  a  serviceable 
horse,  at  least  fourteen  and  a  half  hands  high,  a  good  saddle,  bri- 
die,  breastplate,  cruppers  and  valise,  a  pair  of  boots  and  spurs,  one 
pair  of  pistols  and  holsters,  the  holsters  to  be  covered  with  bear 
skin,  a  sword  and  cartouch  box  to  hold  twelve  cartridges  for  pis- 
tols ;  and  the  field  officers  and  commissioned  officers  shall  reside 
within  the  brigade,  regimental  or  troop  district  in  which  they  respec- 
tively command  ;  there  shall  also  be  to  each  regiment  of  cavalry 
one  adjutant,  one  quarter  master,  one  pay  master,  one  surgeon,  and 

40.  1813,  c.  850,  s.  3. 

41.  1813,  c.  850,  s.  6. 

42.  1806,  c.  709,  s.  1,  7  and  12.— 1524,  (bound  up  with  the  acts  of  1826,  p.  24.) 

VOL.  I.  52 


410 


MILITIA. 


[Chap.  LXXIII. 


Troops  of  cav- 
alry, when  to 
muster,  how  re 
turns  to  be 
made  —  and 
who  to  com- 
mand when 
musterin 
infantry. 


one  surgeon's  mate,  each  of  the  rank  of  heutenant,  to  be  appointed 
by  the  commanding  officer  of  each  regiment ;  the  commissioned 
officers  of  troops  of  cavalry  shall  be  recommended  by  the  field 
officers  of  the  regiment  to  which  they  belong,  and  commissioned 
by  the  governor  for  the  time  being  ;  all  non-commissioned  officers 
of  each  troop  shall  be  appointed  by  the  captain  of  such  troop  ;  all 
commissioned  officers  shall  take  rank  according  to  the  date  of  their 
commissions,  and  when  two  or  more  of  equal  grade  bear  the 
same  date,  then  their  rank  shall  be  determined  by  lot,  to  be  drawn 
by  them  before  the  commanding  officer  of  the  regiment  to  which 
they  belong. 

43.  Each  troop  of  cavalry  shall  muster  at  least  once  in  every 
three  months,  at  such  time  and  place  as  the  captain  or  commanding 
officer  of  such  troop  shall  direct,  and  it  shall  be  the  duty  of  the  cap- 
tain to  make  a  true  return  of  his  troop  to  the  conamanding  officer  of 
the  regiment  to  which  he  may  belong,  on  or  before  the  first  day  of 

fl^fantrv"^  ^^^^  September  in  each  and  every  year,  under  the  penalty  of  thirty  dol- 
lars for  each  neglect.  The  troops  of  cavalry,  when  attending  the 
general  muster  of  the  regiment  or  battalion  of  infantry,  shall  be  un- 
der the  command  of  any  field  officer  of  the  cavalry,  if  present  on 
pamde,  except  on  review  days,  when  ordered  by  the  major  gene- 
rali,  adjutant  general  or  brigadier  general ;  and  at  the  reviewing  of 
the  regiment  of  cavalry,  when  ordered  by  the  colonel  thereof,  the 
cavalry  shall  then  be  under  the  command  of  the  officers  of  the 
cavalry  only,  except  a  general  officer  shall  be  present  on  parade. 

44.  It  shall  be  the  duty  of  the  field  officers  of  cavalry,  once  in 
every  two  years,  to  review  the  troops  of  cavalry,  composing  their 
regiments,  at  some  place  most  convenient  in  the  brigade,  to  be 
designated  by  a  majority  of  the  commissioned  officers  of  the  regi- 
ment, at  such  time  as  the  commanding  officer  of  the  regiment  shall 
appoint,  of  which  at  least  thirty  days'  notice  shall  be  given  to  the 
commanding  officers  of  the  several  troops.  The  commanding 
officer  of  each  regiment  of  cavalry  shall,  once  in  every  year,  on  or 
before  the  first  day  of  October,  make  a  just  and  full  return,  after 
the  form  prescribed  by  the  adjutant  general,  of  all  officers  and 
dragoons  under  his  command,  and  their  equipments,  to  the  briga- 
dier general  to  whose  brigade  the  said  regiment  belongs,  and  shall 
also  transmit  to  the  adjutant  general,  on  or  before  the  fifteenth  day 
of  November  in  each  and  every  year,  a  duplicate  of  such  returns, 
and  at  the  bottom  of  the  same  shall  state  when  his  regiment  or  the 
several  troops  composing  it,  were  last  reviewed  by  the  brigadier 
and  major  generals. 

45.  A  majority  of  the  commissioned  officers  of  each  troop,  and 
a  majority  of  the  commissioned  officers  of  each  regiment,  immedi- 
ately after  their  respective  troop  or  regimental  musters,  shall  hold 
troop  or  regimental  courts  martial,  in  the  same  manner,  and  the 
courts  shall  have  the  same  power,  duties  and  authorities,  and  shall 
be  governed  by  the  same  rules  and  regulations,  as  the  company  or 


Field  officers 
of  cavalry  to 
review  and 
make  returns 


Cavalry  courts 
martial  to  be 
held. 


43.  1306,  c.  709,  s.  4. 

44.  1332,  c.  5,  s.  9. 

45.  180G,  c.  709,  s.  6. 


Chap.  LXXIIL]  militia.  41 J 

regimental  courts  martial  of  the  infantry  herein  before  prescribed  : 
Provided  however^  that  the  delinquents  of  each  troop  of  cavalry,  at 
any  regimental  parade,  shall  be  heai'd,  and  either  fined  or  excused, 
at  the  troop  court  martial  next  succeeding  such  regimental  muster 
or  review,  and  the  troop  courts  martial  shall  make  returns  to  the 
next  succeeding  regimei^tal  court  martial  of  their  proceedings,  and 
of  all  moneys  by  them  caused  to  be  made,  to  be  disposed  of  as 
herein  directed. 

46.  The  fines  of  the  officers,  non-commissioned  officers  and  Fines  of  cav- 
privates  of  the  troops  and  regiments  of  cavalry,  for  not  holding  anJ  privates 
musters,  not  attending  musters,  parades  and  reviews,  or  not  being  same  as  in  the 
armed  and  equipped  as  required  by  law,  shall  be  the  same  as  herein  ^'^  ^°  "^^^ 
before  prescribed  for  officers,  non-commissioned  officers  and  pri- 
vates of  the  infantry  in  similar  cases. 

47.  AH  fines  and  forfeitures,  incurred  by  the  cavalry  officers  o^^ l^eT t'cfbe^"^^ 
privates,  and  not  herein  particularly  appropriated,  shall  be  applied  propriated. 
to  the  purposes  of  first  buying  trumpets,  and  then  at  the  disposal  of 

the  regimental  courts  martial,  to  the  use  and  benefit  of  the  troop 
whence  the  same  arose.  Those  fines,  paid  by  the  field  and  staff 
officers  and  not  particularly  appropriated,  shall  be  equally  divided 
among  the  troops  composing  the  regiment,  to  which  they  respec- 
tively belong  ;  all  other  fines  and  forfeitures  shall  be  appropriated 
and  divided,  at  the  discretion  of  the  regimental  courts  martial,  for 
the  promotion  and  advancement  of  military  discipline. 

48.  It  shall  be  the  duty  of  the  adjutant  of  the  regiment  to  attend  Ptant'of'fhe 
the  regimental  parade,  and  receive  and  execute  such  orders  as  the  regiment, 
commanding  officer  may  deem  expedient,   and  the  said   adjutant 

shall  take  an  oath  of  office,  in  open  court  martial,  and  from  time  to 
time  call  upon  and  bring  suit  against  all  delinquent  captains,  and 
other  commissioned  officers,  below  the  grade  of  captain,  for  fines 
and  penalties  by  them  incurred,  and  which  are  not  otherwise  espe- 
cially provided  for  in  this  act,  and  to  receive  and  account  for  the 
same  annually  with  the  pay  master  of  the  regiment,  for  which  ser- 
vices the  adjutant  shall  be  allowed  a  reasonable  compensation,  to 
be  paid  out  of  the  fines  so  collected,  by  order  of  the  court  martial ; 
and  in  case  any  adjutant  shall  fail  to  attend  and  perform  his  duty  as 
required  by  this  act,  he  shall  forfeit  aiid  pay  the  sum  of  one  hun- 
dred dollars. 

49.  The  following  sections  of  this  act  in  relation  to  the  infantry,  Certain  sec- 

1  i_      J       1  1  1  1  1  •  1       z'    1      tions  01  this 

are  liereby  declared  to  apply  to  the  cavalry,  to  wit  :  so  much  ot  the  act  to  apply  to 
eleventh,  twelfth  and  thirtyeighth  sections  as  relates  to  officers  under  ^^^  cavalry. 
the   grade  of  brigadier  general  ;  also   the  thirteenth,   fourteenth, 
twentyfifth,   twentysixth,    twentyseventh,    twentyeighth,    thirtieth, 
thirtyfirst,  thirtyfourth,   thirtyninth,  fortieth  and  fortyfirst  sections. 

50.  No  person  shall  be  commissioned  in  any  troop  of  cavalry.  Provision  when 
unless   the  number  is  such  as  shall  be  prescribed  by  this  act,  and  the  cavalry 
when  from  default  of  numbers  or  otherwise,  a  troop  shall  no  longer  Jroop  shall  be 

'  '  "       less  than  re- 

quired by  law. 


46. 

1306,  c.  709,  s.  13,  amended 

47. 

1306,  c.  709,  s.  17. 

48. 

1806,  c.  709,  s.  9. 

49. 

1805,  c.  709,  s.  11. 

50. 

1823,  c.  1216,  s.  4. 

41?-  MILITIA.  [Chap.  LXXIII. 

be  entitled  to  muster  as  cavalry,  it  shall  be  the  duty  of  the  captain 
of  infantry,  in  whose  company  district  the  members  of  such  troop 
shall  reside,  to  cause  them  to  be  enrolled  in  their  respective  com- 
panies. 
Volunteer  51.  Out  of  the  militia  of  this   State  there  maybe   enrolled  as 

artiServ'^lia'ht  '^^^"J  volunteer  companies  of  artillery,  light  infantry,  grenadiers  or 
infantry,'  gren-  riflemen,  as  may  see  fit  to  form  themselves  into  such,  each  com- 
men'^mav"e  '  P^'^X  t°  consist  of  fortyfour  privates,  four  sergeants,  four  corporals, 
formed.  one  Captain  and  three  lieutenants. 

May  choose  52.   The  said   companies  shall  be  clothed  in  regimentals,  to  be 

their  own  furnished  by  themselves,  of  their  own  choice  and  fashion,  and  shall 
To  be  under  attend  battalion  and  regimental  reviews,  parades  and  drills,  when- 
the  command  of  ever  Ordered  by  the  colonel  of  the  county  or  commanding  officer 
ine  oXS'^o/'  °^  ^^^  regiment,  to  which  they  respectively  belong  ;  shall  be  sub- 
the  regiment,  ject  to  his  Orders,  and  liable  to  the  same  fines  and  penalties  for  the 
as  other  com-^  uon-performance  of  military  duty,  misdemeanors  in  office,  or  dere- 
panies.  liction  of  duty,  as  the  militia  of  this  State  now  are  or  may  hereafter 

be  subjected  to  by  law. 
A  regiment  of       53^   Whenever  there  may  be  a  sufficient^  number  of  volunteer 

volunteer  com-  ..  i-i-i-ci  r 

panics  may  be  Companies,  m  any  one  brigade  in  this  otate,  to  lorm  a  regiment, 

tormed.  containing  as  many  companies  as  five,  the  commissioned   officers 

of  such  companies  may  meet  together,  at  such  time  and  place  as 

how  chose"^'    ^  majority  of  them  may  designate,  and  proceed  to  elect  (a  majority 

of  said  commissioned  officers  being  present)  a  colonel,  lieutenant 

colonel  and  major,  the  result  of  said  election  to  be  certified  by  the 

senior   officer  present  at  said  meeting,    (who  shall  also   preside 

thereat,)  to  the  brigadier  general  of  said   brigade,  whose   duty  it 

shall  be  to  lay  said  result  before  the  governor,  who  shall  forthwith 

issue  commissions  to  the  said  officers. 

How  captains,       54,   Th^   Captains  and  lieutenants  of  said  companies  shall  be 

non-commL^"  elected  by  a  majority  of  the   members  of  their  respective   com- 

sioned  officers  panies,  and  the  non-commissioned  officers  of  said  companies  shall 

or  appointed.^   ^^  appointed  by  the  commissioned  officers  thereof. 

Company  to  55.   The  captain  or  commanding  officer  of  each  company  of 

muster  once  in  artillery,  light  infantry,  grenadiers  or  riflemen,  shall,  at  least  once 

May  adopt        in  three   months,  muster  their  men  at  such  time  as  such  captain 

rules  and  reg-    ^^j  (Jirect,  and  at  such  place  as  may  be  agreed  on  by  a  majority 

their  own  gov-  of  the  Company,  and  each  of  said  companies  may  adopt  rules   and 

ernment.  regulations  for  their  own  government,   not   inconsistent  with  the 

laws  and  constitution  of  this  State  and  of  the  United  States. 

Officers  of  vol-      gg    Whenever   a  regiment  of  volunteers  shall  be  formed  and 

ments  to  make  officered,  as  herein  before  required,  it  shall  be  their  duty  to  make 

returns.  annual  returns  to  the   brigadier  general  and  adjutant  general,  as  is 

or  may  be  required  to  be  made  by  the  field  officers  of  infantry  or 

militia. 

Persons  en-  57.  No  person,  who  now  is,  or  shall  hereafter  procure  himself 

rolled  in  volun-  *■  , 

51.  1806,  c.  710,  amended. 

52.  1806, c.  710,  amended. 

^3.  1806,  c.  710,  and  1829,  c.  3,  amended. 

54.  1806,  c.  710,  amended. 

65.  1806,  c.  710,  amended. 

56.  1806,  c.  710,  and  1829,  c  3,  amended. 

87.  1806,  c.  710,  amended. 


Chap.  LXXIIL]  militia.  413 

to  be,  enrolled  in  any  company  of  artillery,  light  infantry,  grenadiers  teer  companies 
or  riflemen,  or  in  any  volunteer   company,    shall  be  permitted  to  "^e  infamry"ex° 
return  to  the  infantry,  except  by  the  consent  of  the  field  officers  of  cept  hy  permis- 
the  regiment,  or  by  removal   out'of  the  county,  regiment   or  bat- ^^°"'    ^' 
talion,  wherein  such  person  was  enrolled,  and  it  shall  be  sufficient 
for  any  person  to  be  enrolled  and  approved  by  the  captain  of  said 
volunteer  company,  without  the  intervention  of  any  other  officer  : 
Provided^  nevertheless^  that  any  person,  enrolhng  himself  with  any  Volunteers 
captain  of  a  volunteer  company,  shall  be  subject  to  perform  all  the  !'°""'l  to  serve 

1      •  1  •  •       1       •    r  1         J  1  ai  1  ^   in  the  infantry 

duties  and  exercises  m  theiniantry,  and  under  the  officers  thereoi,  until  they  equip 
until  such  person  so  enrolling  himself  shall  fully  and  completely  themselves. 
equip  himself  with  clothing  and  arms,  required  and  settled  on  for 
such  company,  and  a  certificate  to  that  effect  procured  from  the 
captain,  with  whom  he  has  enrolled,  and  produced  to  the  captain, 
under  whom  such  person  so  served  before  such  enrolment,  or  his 
successor  in  office. 

58.  Whenever  there  may  be  formed   a  regiment  of  volunteers.  Officers  of  vol- 
as  herein  before  provided,  it  shall  be  the  duty  of  the  commanding  ^'^ents[o^r^e- 
officer  of  such  regiment  to  review  his  regiment,  as  often   as  the  '^iew. 
colonel  or  commanding  officers  of  infantry  may  be  required  to  do 

by  law. 

59.  Whenever  a  vacancy  shall  occur  by  death,  resignation,  or^owvacan- 
otherwise,  among  the  field  officers  of  said  regiment,  it  shall  be  the  field  officers  of 
duty  of  the  officer  highest  in  command  to  notify  the  brigadier  gen-  volunteer  regi- 
eral   thereof,    whose    duty  it  shall  be  to  call  the  commissioned  filled.  " 
officers  of  said   regiment  together,  at   some  convenient  place,  for 

the  purpose  of  electing  some  one  to  fill  said  vacancy  ;  and  may 
either  detail  some  officer  to  superintend  said  election,  or  may 
make  it  the  duty  of  the  officer  highest  in  rank,  that  may  be  present, 
to  attend  thereto,  and  transmit  to  him  the  returns  of  said  election  ; 
and  it  shall  be  the  duty  of  said  general  to  transmit  the  result  of 
said  election  to  the  governor,  who  shall  forthwith  commission  the 
officer  or  officers  so  elected. 

60.  Each  and   every  section  of  this  act  relative  to  the  infantry,  Certain  sec- 

.  •  ^       tlOIlS  01    tills 

which  can   be  applied  to  the  government  and   disciplining  of  the  act,  relative  to 
artillery,  light  infantry,  grenadiers   or   riflemen,  or   which   can  by  ^'^^  j'"^^"*Ty' ^° 
construction    be    apphed  to  them  or  either  of  them,    is   hereby  artillery,  &c. 
declared  to  be  in  force  for  the  government  and  disciplining  of  the 
artillery,  light  infantry,  grenadiers  and  riflemen  respectively. 

61.  The  governor  or  commander  in  chief  shall  appoint  general  General  courts 
courts  martial  for  the  trial  of  major  generals  ;  major  generals,  each  ™'^,^g^^' ^°^_ 
within  his  own    division,  shall  appoint  division  courts  martial  for  ed  and  held.. 
the  trial  of  brigadier  generals  ;  brigadier  generals,  each  within  his 

own  brigade,  shall  appoint  brigade  courts  martial  for  the  trial  of  all 
officers  above  the  grade  of  captain  ;  and  in  like  manner  the  colonel 
or  commandant  of  each  regiment  or  battahon,  shall  appoint  regi- 
mental or  battalion  courts  martial,  for  the  trial  of  all  commissioned 

58.  1806,  c.  710,  and  1829,  c.  3,  amended. 

59.  1806,  c.  710,  amended. 

60.  1813,  c  850,  s.  II. 

61.  1817,  c.  955,  s.  1. 


414 


MILITIA. 


[Chap.  LXXIII. 


Officers  of 
general  courts 
martial,  how  to 
be  selected. 


Of  what  rank 
the  officers 
shall  be. 


Officers  for 
courts  martial 
to  be  regularly 
detailed. 


How  to  be  de- 
tailed. 


officers,  under  the  grade  of  a  field  officer  ;  in  every  case  the  offi- 
cer ordering  the  court  martial  shall  cause  the  officer  accused  to  be 
arrested,  to  be  furnished  with  a  copy  of  the  charges  against  him, 
and  to  be  notified  of  the  time  and  place  appointed  for  his  trial. 

62.  When  a  court  martial  is  ordered,  the  officer  ordering  it  shall 
appoint  the  president,  judge  advocate,  and  provost  marshal,  and,  if 
it  be  a  general  court  martial,  orders  shall  be  issued  to  such 
divisions,  as  in  the  opinion  of  the  governor  or  commander  in  chief 
may  most  conveniently  furnish  the  members  thereof ;  if  it  be  a 
division  court  martial,  orders  shall  be  issued  to  such  brigades,  as 
in  the  opinion  of  the  officer  ordering  it,  may  most  conveniently  fur- 
nish the  members  thereof ;  if  it  be  a  brigade  court  martial,  orders 
shall  be  issued  to  such  regiments  in  the  brigade,  as,  in  the  opinion 
of  the  officer  ordering  it,  may  most  conveniently  furnish  the  mem- 
bers of  it ;  if  it  be  a  regimental  court  martial,  the  officer  ordering 
it  may  and  shall  appoint  the  members. 

63.  The  president  of  a  general  court  martial  shall  not  be  under 
the  rank  of  a  major  general,  and  the  court  shall  be  composed  of 
two  brigadier  generals  and  ten  field  officers,  as  members,  six  of 
whom  shall  be  of  different  divisions  ;  the  president  of  a  division 
court  martial  shall  not  be  under  the  grade  of  a  brigadier  general, 
and  the  court  shall  be  composed  of  twelve  field  officers,  as  mem- 
bers, six  of  whom  shall  be  of  a  diiFerent  brigade  ;  the  president  of 
a  brigade  court  martial  shall  not  be  under  the  rank  of  a  colonel, 
and  the  court  shall  be  composed  of  twelve  officers,  as  members,  to 
be  taken  from  the  brigade,  none  of  whom  shall  be  under  the  rank 
of  captain  ;  the  president  of  a  regimental  court  martial  shall  not  be 
under  the  grade  of  a  field  officer,  and  the  court  martial  shall  be 
composed  of  a  majority  of  the  officers  of  the  regiment,  as  members. 

64.  Whenever  the  commanding  officer  of  a  division,  brigade, 
regiment  or  battalion,  shall  be  ordered  to  furnish  any  officer  or 
officers,  as  a  members  or  members,  supernumerary  or  supernume- 
raries, of  a  coiu't  martial,  such  officer  or  officers  shall  be  regularly 
detailed  from  the  roster  of  the  division,  brigade,  regiment  or  bat- 
talion, by  the  commanding  officer  thereof  forthwith,  after  receiving 
orders  therefor  :  Provided^  that  in  case  of  sickness,  inability,  or 
absence  of  any  officer,  whose  turn  it  may  be  to  serve  on  a  court 
martial,  the  detailing  officer  shall  certify  such  circumstance  to  the 
officer  who  ordered  the  court  martial,  and  detail  the  officer  next  in 
succession. 

65.  Officers,  ordered  to  be  detailed  to  serve  on  courts  martial, 
shall  be  detailed  in  the  following  manner  : — Brigadier  generals  by 
the  major  generals  of  division  from  the  division  rosters  ;  colonels, 
lieutenant  colonels  and  majors  by  the  commanding  officers  of  brig- 
ades from  the  brigade  rosters  ;  captains  and  subalterns  by  the  com- 
manding officers  of  regiments  and  battalions  from  the  regimental  or 
battalion  rosters. 


62.  181 7,  c.  955,  s.  2. 

63.  1817,  c.  955,  s.  S. 

64.  1817,  C  955,  s.  4. 

65.  1817,  c.  955,  s.  5. 


Chap.  LXXIII.]  militia.  ,  415 

66.  All  courts  martial  for  the  trial  of  officers  shall  be  constituted  Courts  martial, 
of  a  president,  judge  advocate  and  provost  marshal,  together  vvith  g^^^mg*^"' 

the  number  of  members  prescribed  by  the  provisions  of  this  act, 
and  the  officer  ordering  a  court  martial  shall  and  may,  at  his  dis- 
cretion, order  a  number  of  officers  to  be  detailed,  as  supernumera- 
ries, in  addition  to  those  intended  to  serve  as  members,  to  attend 
the  organization  thereof,  and,  in  case  there  should  be  any  vacancy 
or  vacancies,  the  judge  advocate  shall  fill  such  vacancy  or  vacancies 
from  the  supernumeraries,  beginning  with  the  highest  in  grade  and 
proceeding  in  regular  rotation. 

67.  All  officers  on  a  court  martial  shall  take  rank  by  seniority  ^^^^'^'^^^"^j^^ 
of  commission  without  regard  to  corps  ;  and  before  any  court  mar- how  to  take 
tial  shall  proceed   to   the  trial  of  any  officer,  the  judge  advocate  ™"^7h^°  ""^^'^ 
shall  administer  to  the  president  and  each  of  the  members  the  fol- 
lowing oath:    "You,  A.  B.,  do  swear  that  you  will  w-ell  and  truly 

try  and  determine,  according  to  the  evidence,  the  matter  now  be- 
fore you  between  the  State  of  North  Carolina  and  the  prisoners  to 
be  tried,  and  that  you  will  duly  administer  justice  according  to  the 
militia  laws  of  North  Carolina,  without  partiahty,  favor  or  affection  ; 
and  you  do  further  swear  that  you  will  not  divulge  the  sentence  of 
the  court,  until  it  shall  be  published  by  the  proper  authority, 
neither  will  you  disclose  the  vote  or  opinion  of  any  particular  mem- 
ber of  the  court,  unless  required  to  give  evidence  thereof  as  a 
witness  by  a  court  of  justice  in  due  course  of  law  :  so  help  you 
God."  And  the  president  shall  administer  to  the  judge  advocate 
the  following  oath  :  "  You,  A.  B.,  do  swear  that  you  will  faith- 
fully and  impartially  discharge  the  duty  of  judge  advocate  on  this 
occasion,  as  well  to  the  State  as  to  the  accused,  and  that  you  will 
not  disclose  the  vote  or  opinion  of  any  particular  member  of  the 
court,  unless  required  to  give  evidence  thereof  as  a  witness  by  a 
court  of  justice  in  a  due  course  of  law,  nor  divulge  the  sentence 
of  the  court  to  any  but  to  the  proper  authority,  until  it  shall  be 
duly  published  by  the  same  :  so  help  you  God." 

68.  The  judge  advocate  of  any  court  martial,  constituted  accord-  ll°^l  ^mmon^-' 
ing  to  the  provisions  of  this  act,  shall  and  may  issue  a  summons,  in  ed. 

the  nature  of  a  subpoena  in  criminal  cases,  directed  to  the  provost 
marshal,  to  summon  witnesses  for  the  State,  and  the  accused,  and 
the  persons  summoned  by  him  shall  be  bound  to  attend  and  give 
evidence  before  the  court  martial,  under  the  penalty  of  forty  dol- 
lars, to  be  recovered  by  the  party  aggrieved  in  an  action  of  debt 
before  a  justice  of  the  peace,  unless  the  witness  can  prove  his  ina- 
bility to  attend. 

69.  All  witnesses  shall  be  sworn  or  affirmed  by  the  judge  advo- ^|^°^^i'j^^°  ^*^ 
cate,  before  they  give  their  evidence,  as  in  criminal  cases,  accord- 
ing to  the  following  form.      "You  A.  B.  do  swear  (or  affirm,  as 

the  case  may  be)  that  the  evidence  you  will  give  the  court  in  the 
case  between  the  State  and  C.  D.  shall  be  the  truth,  the  whole 
truth  and  nothing  but  the  truth  :  so  help  you  God." 

66.  1817,  c.  955,  s.  6. 

67.  1817,  c.  955,  S.  7. 

68.  1817,  c.  955,  s.  8. 

69.  1817,  c.  955,  s.  9. 


advocate. 


416  MILITIA.  [Chap.  LXXIII. 

Rules  for  the         70.   All  trials  by  court  martial  shall  be  carried  on  In  the   day 
lourtTmartiaL  time,  between  the  hours  of  ten  o'clock  in  the  morning  and  five 
o'clock  in  the  evening  ;  and  when  the  votes  shall  be  called  for  on 
any  question,  the  judge  advocate  shall  begin  with  the  youngest  in 
commission  and  proceed  regularly  to  the  oldest.     And  at  all  courts 
martial,  unless  two  thirds  of  the  members  agree  that  the  accused 
is  guilty,  the  judge  advocate  shall  record  his  acquittal.      And  all 
courts  martial,  authorized  and  appointed  in  pursuance  of  the  mili- 
tary laws  of  this  State,  shall  have  full  power  and  authority  to  pre- 
serve order   during  their  session,  and  may  imprison  in  the  county 
jail,  for  the  space  of  eight  hours,  any  and  all  persons,  who  shall  in 
the  presence  of  the  court  martial  behave  in  a  disorderly  and  con- 
temptuous manner. 
Dutyof  jud^e       71.   It  shall  be  the  duty  of  the  judge  advocate,  upon  all  trials, 
to  state  impartially  to  the  court  the  evidence,  both  for  and  against 
the   accused,    to  take  in  writing  the  evidence  both  for  and  against 
the  accused,  and  to  minute  down  the  proceedings  of  the  court,  all 
of  which,  with  the  judgment  or  sentence  of  the  court  thereupon, 
authenticated  by  his  signature,  and  that  of  the  president  of  the  court, 
with  the   papers   read  at  the  trial  or  copies  thereof,  certified  by 
him,  he  shall  transmit  under  seal  to  the   officer   who   ordered  the 
court,   and  all  motions  and  objections  to  evidence,  whether  on  the 
part   of  the    State,  or  the  accused,  and  the  opinion  of  the  judge 
advocate  on  questions  of  law,  made  at  the  trial,  shall  be  stated  in 
WTiting,  and  the  statement  of  the  complaint  and  the  defence  shall 
be  made  in  writing,  so  that  a  full  view  of  the  trial  may  be  had  by 
the  officer,  whose  duty  it  is  to  approve  or  disapprove  of  the  pro- 
ceedings ;  and  all  the  original  proceedings  and  judgment  or  sen- 
tence of  all  courts  martial,  appointed  according  to  the  provisions 
of  this  act,  after  having  been  approved  or  disapproved  by  the  offi- 
cer ordering  them,  shall  by  him,  as  soon  thereafter  as  convenient, 
be  transmitted  to  the  adjutant  general  of  the  State,  to  be  deposited 
and  preserved  in  his  office  ;  and  the  party  tried  by  any  court  mar- 
tial, as  aforesaid,  upon  request  by  himself,  or  by  any  person  prop- 
erly authorized,  at  the  adjutant  general's  office,  shall  be  entitled  to 
a  copy  of  the  original  record,   certified  as   aforesaid,   of  the   pro- 
ceedings and  sentence  of  the  court,  he  paying  reasonably  for  the 
same. 

-,        ,.  72.  When  any  officer  shall  be  arrested  and  notified  to  attend  any 

Proceedings  ,  •^.  ,  •' 

against  officers  court  martial,  which  may  be  ordered  for  his  trial,  and  shall  refuse 
arrested  and      q^.  neglect  to   attend   the  same,   the  said  court  shall  take  up  the 

refusing  to  at-  =  -r        •  n  i  •  i  •  ■  i     i    i       i 

tend.  charges   and  specmcations  alleged   agamst  hmi,   provided  he  has 

been  served  with  a  copy  thereof,  and  proceed  to  trial  in  the  same 
manner  as  if  he  were  present. 
Perjury  before        73.   If  any  person  shall  wickedly,  wilfully  and  corruptly  swear 
courts  martial,  fgjgyiy  before  any  court  martial,  touching  and  concerning  any  mat- 
ter or  thing  cognizable  before  such  court  mai'tial,  he  shall,  on  con- 

70.  1817,  C.  95.5,  S.  10. 

71.  1817,  c.  955,  S.  11. 

72.  1817,  c.  955,  S.  12. 

73.  1312,  c.  823,  s  3. 


Chap.  LXXIIL]  militia.  417 

viction  thereof,  be  liable  to  the  pains  and  penalties  of  perjury,  and 
in  all  cases,  to  delinquents  and  witnesses,  oaths  and  affirmations  shall 
be  administered  by  the  judge  advocate  or  presiding  officer  of  said 
court  martial. 

74.  Dishonest  or  ungentlemanly  conduct  in  an  officer  shall  be  t^or  what  con- 
punished  by  cashiering,  and  disabling  him  from  ever  holding  a  niili- g^e^  ^^v  be 
tary  commission  in  this  State.  cashiered. 

75.  Upon  any  requisition  by  the  United  States  for  a  detachment  Detachments  of 
of  the  militia  from  this  State,  it  shall  be  the  duty  of  every  captain  united  States 
of  infantry  to  enter  upon  his  roll  all  able  bodied   free  white  men,  service. 
between  the  ages  of  eighteen  and  fortyfive  years,  except  such  as 

are  exempted  by  the  second  section  of  the  act  of  congress  of  one 
thousand  seven  hundred  and  ninetytwo,  and  except  the  judges  of 
the  superior  courts  of  law  and  equity,  and  ministers  of  the  gospel, 
regularly  ordained,  within  his  company  district,  and  they  are  here- 
by declared  to  be  subject  to  draft  :  Provided,  that  nothing  in  this 
act  shall  be  understood  to  subject  persons,  heretofore  exempted, 
to  perform  ordinary  militia  duty  :  Jlnd  provided  further,  nothing 
herein  contained  shall  be  construed  to  conffict  with  the  provisions 
of  the  third  section  of  this  act. 

76.  It  shall  be  the  duty  of  each  captain  or  commanding  officer  Substitutes 
of  a  company  of  militia,  detached  as  part  of  the  requisition  under  ^^J^^j^  "^^^ 
the   authority  of  the    United    States,   to  receive  and  enrol  in  the 

place  and  stead  of  any  person,  drafted  to  serve  in  such  company, 
any  able  bodied  free  white  citizen  to  serve  as  a  substitute  for  such 
person  so  drafted. 

77.  If  any  commissioned  officer,  under  the  grade  of  a  field  offi- Vacancies 
cer,  appointed   to   command   in  any  detachment  from  this   State,  of  field  officers 
under  the  authority  of  the  United   States,    shall  die,  resign   or  re-i^'^etachments, 
move  out  of  the  regiment  to  which  he   belongs  or  may  belong,  itpiie^d.°   ^  ^^^' 
shall  be  the  duty  of  the  colonel  commandant  of  the  regiment,  to 

which  such  officer  belonged,  to  recommend  a  proper  person,  resi- 
dent within  the  bounds  of  such  regiment,  to  be  commissioned  by 
the  governor  to  fill  such  vacancy. 

78.  In  all  cases  where  a  militia  man  shall  have  performed  a  term  A  militia  man, 
of  service,  either  as  a  volunteer  or   drafted  militiaman,  whether  f,,  ^e 'exempt ' 
upon  the  requisition  of  the  United  States  or  of  this  State,  he  shall  from  a  second 
not  be  liable  to  stand  a  second  draft,    until  the  whole  of  the  militia  ^^ '" 
within  his  company  district  shall  have  performed  a  like   term  of 

duty. 

79.  When  militia  men  are  ordered  out  on  duty  in  aid  of  the  civil  Penalty  for  re- 
authority,  either  to  guard  a  jail  or  for  any  other  purpose,  and  shall  ne-  for^  dij°v^^'' 
gleet  or  refuse  to  attend,  agreeably  to  orders,  each  man  shall  be  fined,  when  ordered 
at  the  discretion  of  his  company  court  martial,   not  exceeding  five  °u[i|jfi.ity^  "^^^ 
dollars  for  each  day  he  shall  fail  to  do  duty. 

80.  In  all  cases  of  insurrection  among  slaves  or  free  persons  of  Seven  justices 

may  call  out 

74.  1803,  c.  749,  s.  1. 

75.  1814,  c-  867,  s.  3. 

76.  1S12,  c.  828,  s.  8. 

77.  1812,  c.  828,  s.  9. 

78.  1814,  C.  867,  S.  i. 

79.  1822,  c.  1167,  s.  2. 

80.  1831,  c.  32,  s.  1. 

VOL.  I.  53 


418 


MILITIA. 


[Chap.  LXXIII. 


the  militia  in 
case  of  inva- 
sion or  insur- 
rection. 


\y 


Duty  of  the 
commanding 
officer  on  such 
requisition. 


Commanding 
officer  called 
out,  to  notify 
his  superior  of- 
ficer. 


Superior  officer 
to  notify  the 
governor. 


Three  justices 
may  order  out 
the  militia  to 
suppress  out- 
lawed or  run- 
away slaves. 


Pay  of  the 
militia  when  in 


color,  either  in  any  county  of  tiiis  State,  or  in  an  adjoining  State, 
or  in  case  of  invasion,  seven  justices  of  the  peace,  deeming  the 
emergency  to  require  it,  may,  at  their  discretion^  require  in  writing 
of  the  commanding  officer  or  officers  of  their  county  to  call  out  the 
militia  under  his  command,  and  any  volunteer  company  or  compa- 
nies in  said  county,  in  the  absence  of  the  officer  who  is  entitled 
to  the  command,  to  suppress  or  repel  such  insurrection  or  in- 
vasion, or  to  protect  the  inhabitants  of  their  county  from  the  dan- 
ger to  be  apprehended,  and  may  again  require  of  the  said  officer  to 
dismiss  his  men  when  they  think  the  danger  is  over,  and  the  com- 
manding officer  may  dismiss  in  like  manner. 

81.  It  shairbe  the  duty  of  the  commanding  officer  forthwith  to 
order  out  the  militia,  in  the  way  he  shall  judge  best  to  effect  the 
purpose  desired  ;  he  may  make  such  contracts,  as  he  may  think 
most  to  the  interest  of  the  State,  for  the  requisite  ammunition,  and 
appoint  some  one  a  commissary  to  provide  the  necessary  rations 
for  the  subsistence  of  the  men  while  in  service,  and  immediately 
on  the  discharge  of  the  men  the  commanding  officer  is  hereby  em- 
powered to  dispose  of  any  surplus  ammunition  or  provisions,  for 
the  benefit  of  the  State;  and  all  expenses  hereby  incurred  shall  be 
properly  certified  by  said  oificer  and  forwarded  to  the  governor, 
and  shall  be  paid  by  the  State  after  undergoing  an  examination,  and 
approval  by  the  governor,  treasurer  and  comptroller,  who  are 
hereby  created  a  board  for  that  purpose.. 

82.  The  commanding  officer  of  any  regiment,  as  soon  as  he 
has  called  out  the  militia  under  the  provisions  of  the  eightyfirst 
section  of  this  act,  shall  immediately  send  an  express  to  the  briga- 
dier or  major  general  of  his  brigade  or  division,  informing  him  of 
that  fact,  and  of  any  other  official  facts  he  may  be  In  possession  of, 
and  continue  to  do  so  from  time  to  time,  and  the  brigadier  or  ma- 
jor general  shall  immediately  apprise  the  governor,  cither  by  ex- 
press or  mail,  as  he  may  judge  the  emergency  requires,  of  all  the 
circumstances  ;  in  the  mean  time  such  general  officer  shall  pursue 
the  most  effectual  measures  for  repelling  such  invasion,  or  suppress- 
ing such  insurrection,  and  the  militia  thus  called  out  shall  be  armed 
according  to  law. 

83.  When  there  may  be  outlawed  or  runaway  negroes,  com- 
mitting depredations,  or  in  any  way  alarming  the  citizens  of  any 
county,  or  where  the  guarding  of  a  jail  is  necessary,  three  justices 
of  the  peace,  certifying  the  same  in  writing  and  requesting  the  offi- 
cer in  command  of  their  county,  he  is  hereby  required  to  effect 
the  object  set  forth  in  said  request  of  the  justices,  and  the  ex- 
penses of  said  militia  so  called  out,  shall  be  paid  by  the  court  of 
the  county,  who  are  hereby  authorized  to  lay  a  sufficient  tax  to  pay 
said  militia,  at  the  same  rates  as  the  regular  troops  of  the  United 
States  are  by  law  now  entitled  to,  when  in  actual  service. 

84.  The  militia  of  this  State,  both  officers  and  soldiers,  when 
called  into  the  service  of  the  State,  shall  receive  the  same  pay 
and  rations  as  when  called  into  the  service  of  the  United  States. 


81.  1831,  c.  32,  s.  2. 

82.  1831,  c.  32,  s.  3. 

83.  1831,  c.  32,  s.  4. 

84.  1313,  c.  850,  s.  5. 


Chap.  LXXIIL]  militia.  419 

85.  Every  officer  who  shall  refuse  or  neglect,  on  call  or  alarm  Punishment 
given,  to  appear  at  such  times  and  places  as  shall  be  appointed  by  appear"on"can 
his  commanding  officer,  shall,  on  conviction  before  a  court  martial,  or  alarm  given- 
be  cashiered  and  rendered  incapable  of  ever  after  holding  a  military 
appointment  under  the  authority  of  this  State,  and  be  further  liable 

to  pay  the  sum  of  forty  dollars,  to  be  collected,  as  herein  directed  ; 
and  if  a  non-commissioned  officer  or  private,  he  shall  forfeit  and 
pay  the  sum  often  dollars.  If  any  person  do  not  march  against  the 
enemy,  when  commanded,  by  himself  or  substitute,  or  refuse  or 
neglect  to  do  his  duty  or  perform  the  services  he  is  requested  to 
perform  by  his  officer,  or  quit  his  post,  desert  or  mutiny,  it  shall 
and  may  be  lawful  for  the  commanding  officer  of  the  regiment  or 
corps  to  order  a  court  martial  for  the  trial  of  such  offender  ;  the 
members  when  met  shall  individually,  before  they  proceed,  take 
the  following  oath  :  "I  swear  well  and  truly  to  try  and  determine, 
according  to  the  evidence  of  the  matter  before  me,  between  the 
State  and  the  person  now  to  be  tried  :  so  help  me  God."  And 
shall,  on  trial  and  conviction,  order  punishment  on,  the  offender, 
according  to  the  articles  of  war  established  for  the  regulation  of 
the  army  :  Provided,  such  punishment  shall  not  extend  to  sentence 
of  death,  except  in  case  of  desertion  to  an  enemy,  or  mutiny., 

86.  If  any  non-commissioned   officer   or   private   mihiia  man,  Punishment  for 
while  in  the  pay  and  service  of  this  State,  shall  wilfully  desert  the *^^*'^'''^^°'^- 
service  or  abandon  the  post  assigned  to  him,  without  being  regularly 
dischai'ged,  or  permitted  by  an  officer  duly  authorized  for  that  pur- 
pose, such  non-commissioned  officer  or  private,  so   deserting  or 
abandoning  his  post,  and  being  thereof  convicted  by  a  court  martial 

having  jurisdiction  of  the  offence,  shall  be  adjudged  to  have  for- 
feited the  pay  and  emoluments,  due  to  him  at  the  time  of  hi;?  deser- 
tion, and  be  subject  to  a  fine  not  less  than  twenty  and  not  exceeding 
fifty  dollars,  and  imprisonment  not  exceeding  six  nor  less,  than  one 
month,  at  the  discretion  of  the  court  martial  ;  and,  furthermore, 
turned  over  to  serve  as  a  private  soldier  in  the  regular  army  of 
the  United  States,  at  the  discretion  of  the  court  martial,  not  ex- 
ceeding double  the  term  of  time,  which  he  had  been  called  out  to 
serve  in  the  militia  of  this  State. 

87.  All  acts,  heretofore  passed  on  the  subject  of  the  militia,  are  Repealing 
hereby  repealed  :  Provided^  that  this  act  shall  not  extend  to  military  clause, 
appointments  made  by  recommendation  to  the  present  legislature  : 

And  provided,  that  nothing  herein  contained  shall  be  construed  to 
repeal  any  private  act  of  the  General  Assembly,  incorporating, 
granting  privileges  to,  or  regulating  particular  corps,  whether  of  the 
volunteers  or  of  the  ordinary  militia. 

88.  It  shall  be  the  duty  of  the  adjutant  general    to  have  copies  Adjutant  gen- 
of  this  act  printed  and    distributed,  one  copy  to  each  general  offi- ^op^^g" ^f^{]®jg 
cer,   one  copy  to  each  field  officer,  and  two  copies  to  each  com-  act  printed  and 
pany — to  be  distributed,  as  is  provided  for  the  distribution  of  the  'Jis^ributed. 
acts  of  the  General  Assembly. 

89.  This  act  shall  be  in  force  from  and  after  its  passage.  to  beln  for^e.^ 

85.  1306,  c.  708,  s.  20. 
85.  lS13,c.  850,  s.  12. 
S7.  Amendment. 

88.  Amendment- 

89.  Amendment 


420 


MILLS    AND    MILLERS.      [ChAP.  LXXIV. 


CHAPTER  74. 


MIL.1-S    ANB    MIL-LERS. 


AN  ACT  CONCERNING  MILLS  AND  MILLERS. 


4. 


Section 

1.  What  shall  be  public  mills. 

2.  Persons  wishing  to  build  public  mills, 

how  to  proceed  when  they  own 
land  only  on  one  side  of  the  stream. 

3.  Persons  obtaining   an  order  to  build 

a  mill,  how  to  obtain  a  title  to  the 
land  on  which  it  is  built. 

When  an  order  for  one  mill  is  grant- 
ed, another  shall  not  be  granted 
within  two  miles  on  the  same  tract 
of  land — Not  to  overflow  another,  or 
create  a  nuisance. 

Within  what  time  the  mill  is  to  be 
commenced  and  finished. 

What  time  infants,  &c.  may  have  for 
rebuilding  mills  burnt  or  destroyed. 

Millers  shall  grind  according  to  turn 
— What  toll  they  may  take. 

What  measures  millers  shall  keep  in 
their  mills — Keeping  false  mea- 
sures indictable. 

Persons  injured  by  the  erection  of 
mills,  how  to  proceed  to  recover 
damages. 

When  notice  is  served  upon  the  ten- 
ant in  possession,  instead  of  the 
owner,  how  such  tenant  is  to  pro- 
ceed. 


9. 


10. 


12. 


13. 


Section 
11.  If  the  tenant  fail  to  file  an  affidavit, 
he  is  to  be  taken  as  owner. 

When  the  owner  appears,  he  is,  upon 
giving  bond,  to  be  admitted  co- 
defendant  with  the  tenant. 

Upon  the  hearing  of  the  petition, 
what  proceedings  are  to  be  had  for 
the  purpose  of  having  the  damages 
assessed,  the  verdict  of  the  jury  re- 
turned, and  how  long  such  verdict 
shall  be  in  force. 

Provision  in  cases  where  the  deima- 
ges  are  assessed  as  high  as  twenty 
dollars. 

Provision  as  to  costs  where  the  ver- 
dict is  that  there  is  no  damage,  or 
where  the  damages  are  under  five 
dollars — How  execution  shall  issue 
against  the  defendant  for  damages. 

What  pay  the  sherilT  and  jurors  shall 
be  entitled  to. 

Upon  appeals,  the  trial  to  be  had  at 
bar  in  the  superior  court — Plaintiff" 
to  pay  costs  if  he  appeals  and  fails 
to  recover  higher  damages. 

Keepers  of  public  mills  exempt  from 
serving  on  juries  or  working  on 
roads. 


14. 


15. 


16. 


17. 


18. 


What  shall  be 
public  mills. 


Persons  wish- 
ing to  build 
public  mills, 
how  to  proceed, 
when  they  own 
land  only  on 
one  side  of  the 
stream. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  every  water  grist  mill  or  windmill,  already  built  or  which 
shall  hereafter  be  built,  that  hath  or  shall  at  any  time  grind  for  toll, 
shall  be  held  and  deemed,  and  is  hereby  declared  to  be,  a  public 
mill. 

2.  Any  person,  willing  to  build  such  mill,  who  hath  land  only  on 
one  side  of  a  run,  shall  exhibit  his  petition  to  the  county  court,  and 
therein  shew  who  is  the  proprietor  on  the  opposite  side  of  the  run, 
whereupon  a  summons  shall  issue  to  such  proprietor  to  appear  at 
the  next  court  and  answer  the  allegations  of  such  petition,  and  the 
court  also  at  the  same  time  shall  order  four  freeholders  to  lay  off, 


1-   1777,  c.  122,  s.  1. 

2.  1777,  c.  122,  s.  2.— 1S36,  amended. 


Chap.  LXXIV.]  mills  and  millers.  421 

view  and  value  on  oath,  to  be  administered  by  the  sheriff,  or  any 
justice  of  the  peace,  an  acre  of  the  land  of  such  proprietor,  and 
also  an  acre  of  the  land  of  the  petitioner  opposite  thereto,  and  to 
report  their  opinion  and  proceedings  thereon  to  the  next  court  ; 
and  thereupon  the  court  shall  order  the  said  report  to  be  recorded, 
and,  if  it  take  not  away  houses,  orchards,  gardens  or  other  imme- 
diate conveniences,  shall  and  may,  and  are  hereby  empowered  and 
authorized  to  grant  leave  to  the  petitioner,  or  such  proprietor,  to 
erect  such  mill  at  the  place  proposed,  as  in  their  discretion  shall 
seem  reasonable,  and  to  order  the  costs  of  such  petition  to  be  paid 
by  the  person  to  whom  such  leave  shall  be  granted. 

3.  The  person,  to  whom  such  leave  is  granted,  shall  pay  down  Persons  ob- 

in  court  for  the  acre  of  land  he  shall  obtain  thereby,  the  valuation  order"foTuild  a 
monevi  and  procure  a  record  to  be  made  thereof,  which  shall  be  a  "^ii^' how  to  ob- 

•    •      •  •  .       tEiin  a.  title  to 

good  and  effectual  seizin  in  law  to  create  to  such  person,  his  heirs  the  land  on 
and  assigns,  a  fee  simple  in  such  acre  of  land.  which  it  is 

4.  Where   any  grist  mill   shall  have  been  erected  by  order  of  ^^,  "  , 
court,  it  shall  not  be  lawful  for  any  court,  on  the   petition   of  any  for  one  mill  is 
person  whatever,  to  grant  any  part  of  the  tract,  whereon  such  "^iH  fnother'shall 
stands,  for  the  purpose  of  building  another  mill,  within  two  miles  not  be  granted 
above  or  below  the  mill  already  erected.     And  it  shall  not  be  law-  within  two 

r  1  r  1  -11  miles,  &c. 

lul  tor  any  court  to  grant  leave  to  any  person  to  erect  a  mill,  so  as  Not  to  overflow 
to  overflow  any  other  mill,  or  create  a  nuisance  to   the   neighbor- ^"°^'^*^''' ■'"" "®' 

,         ,  "^  °  ^te  a  nuisance. 

hood. 

5.  The  person  so  being  seized  shall,  within  one  year,  begin  to  within  what 
build  a  water  mill,  and  finish  the  same  within  three  years,  and  shall  t™fe*com^^'^  ^^ 
thereafter  keep  up  the  same,  for  the  use  and  ease  of  all  such  as  shall  menced  and 
be  customers  to  it,  otherwise  the  said  land  shall  return  to  the  person  fi'^^^ed. 
from  whom  it  was  taken,  or  to  such  other  person  as  shall  have  his 

right,  unless  the  time  for  finishing  the  same,  for  reasons  shown  to 
and  approved  of  by  the  court,  be  enlarged. 

6.  If  any  water  mill,  belonging  to  any  person  within  the  age  ofyvhattime 
twentyone  years,  feme  covert,  non   compos  mentis,  or  imprisoned,  maThav^^r 
be  let  fall,  burnt,  or  otherwise  destroyed,  then  such   person   or  rebuilding  mills 
persons,  and  their  heirs,   shall   have   three  years   to  rebuild  and  st'rOTed"^^  ^'^' 
repair  such  mill,  after  his  or  their  full  age,  discoverture,  coming  of 

sound  mind,  or  enlargement  out  of  prison. 

7.  All  millers  shall   grind  according  to  turn,  and  shall  well  and  Millers  shall 
sufficiently  grind  the  grain  brought  to  their  mills,  if  the  water  will  i^nTfo^tum'^'*" 
permit,  and  shall  take  no  more  toll  for  grinding  than  one  eighth  part  What  toll  thej 
of  the  Indian  corn  and  wheat,  and  one  fourteenth  part  for  chopping  ™^^  ^'^'^''- 
grain  of  any  kind  ;  and  every  miller  and  keeper  of  a  mill,  making 

default  therein,  viz  :  not  grinding  according  to  turn,  nor  well  and 
sufficiently  grinding  the  grain,  if  the  water  will  permit  as  aforesaid, 
or  exacting  and  taking  more  toll  than  herein  is  set  down  and 
allowed,  shall,  for  every  such  offence,  forfeit  and  pay  five  dollars 
to   the  party  injured,  to  be   recovered   before   any  justice  of  the 

3.  1777,  c.  122,  S.  3. 

4.  1777,  c.  122,  s.  4  and  5- 

5.  1777,  c.  122,  s.  6. 

6.  1777,  c.  122,  s.  7. 

7.  1777,  c.  122,  s.  10.-1793,  c.  402. 


422  MILLS    AND    MILLERS.      [ChAP.  LXXIV. 

county,  wherein  such  offence  is  committed,  with  costs  :  Provided 

nevertheless,  that   it  shall  be   in  the  power  of  any  such  owner  to 

grind  or  cause  to  be  ground  his  own  grain,  at  any  time  he  thinks  fit. 

What  measures      8.   All  millers  shall  keep  in  their  mills  the  following  measures, 

keepin\heir    '^^^  •  ^  half  bushel  and  peck,  at  full  measure,  and  also  proper  toll 

mills.  dishes  for  each  measure,  and  every  owner  by  himself,  servant  or 

Keepmg  false    gjave,  keeping  any  mill,  who  shall  keep  any  false  toll  dishes,  con- 

dictalile.  trary  to  the  true  intent  and  meaning  of  this  act,  shah  be  indicted, 

and,  on  conviction,  shall  be  fined  or  imprisoned,  or  both  fined  and 

imprisoned,  at  the  discretion  of  the  court. 

Persons  in-  Q.   Any  person,  who  may  conceive  himself  injured  by  the  erec- 

erection  of        tion  of  any  public  grist  mill,  or  mills  for  domestic  manufactures  or 

™lis^o'^  to    other  useful  purposes,  and  be  desirous  of  recovering  damages  from 

cover  damages,  the  owner  or  proprietor  of  any  such  mill,  shall  apply  by  petition 

to  the  court  of  pleas  and  quarter  sessions  of  the  county,  in  which 

the  land,  to  which  the  damage  is  done,  is  situate,  setting  forth  in 

such  petition  in  what  respect  he  is  injured  by  the  erection  of  said 

mill,  having  first  given  to  the  owner  or  owners,  or  to  the  tenant  or 

tenants   in   possession  of  said   mill,  ten   days  previous  notice  in 

writing,  of  his   intention  to  file   said  petition,  and  a  copy  of  such 

notice,  returned  by  the  sheriff  executed,  shall  be  evidence  of  such 

service. 

When  notice  jQ.   When  such  notice  shall  have  been  served  upon  any  tenant 

IS  served  upon  .  .  ^  -n     •  i     /■    i  i  r 

the  tenant  in  or  tenants  m  possession  of  any  mill,  instead  oi  the  owners  thereof, 

possession,  m-  gygh  tenant  or  tenants  shall  file  in  court  an  affidavit,  settina;  forth 

owner,  how  the  name  of  the  real  owner  or  owners  of  the  mill  or  mills,  whereof 

such  tenant  ^6  or  they  are   tenants,  and  upon  filing   such   affidavit,  the  court 

IS  to  proceed.       i     n         i  r  i  •  •  i  i  i 

shall  order  a  copy  of  such  petition  to  be  served  on  such  owner  or 
owners,  if  he,  she  or   they  reside  in  this  State,  and  if  not  in  this 
State,  the  court  shall  order  publication  to  be  made  for  six  weeks 
in  some  newspaper  in  this  State,  notifying  such  owner  or  owners 
to  appear,   and   plead,   answer,    or   demur,   or  judgment   will    be 
entered  against  him,  her  or  them  at  the  next  court. 
If  the  tenant         n.   If  such  tenant  or  tenants,  as  aforesaid,  shall  fail  to  file  such 
affida°vit,he'is   affidavit,  he   or   they  shall   be   taken   and   deemed  the   owner   or 
to  be  taken  as   owners  of  such  mill,  and  the  court  shall  hear  the   petition,   and 
order  a  writ  to  be  issued,  in  the  same  manner  as  if  such  tenant  or 
tenants   was  or  were   the   real   owner  or   owners    as    hereinafter 
directed,  and  in  case  of  judgment  for  the  petitioner  or  petitioners, 
be,  she   or  they  shall  recover  all   costs,  and  it  shall  be  lawful  for 
the  petitioner  to  take  out  execution,  and  sell  said  mill  and  appur- 
tenances, and  the  property  of  the  tenant  or  tenants,  and  the  property 
of  the  owner  or   owners  thereof,  or  a  sufficiency  to  pay  all  costs 
and  the  judgment. 
When  the  own-      12.   If  the  person  or  persons,  set  forth  as  owner  or  owners  of 
fs  up^T^Vi^n^  such  mill,  in   the  affidavit  of  such  tenant  or   tenants  as  aforesaid, 
bond,  to  he  ad-  shall  appear  at  the  next  court  and  apply  to  be  made  parties  to  the 
ffendant'^wi'th'     petition,  it  shall  and  may  be  lawful  for  the  court  to  cause  him,  her 

the  tenant.  ,  , 

S.  1777,  c.  122,  s.  11,  amended. 

9.  1509,  c.  773,  s.  1.  — 1513,  c.  863,  s.  1.— 1833.  c.  6,  s.  1. 

10.  1833,  c.  6,  S.  2. 

11.  1S33,  c.  6,  s.  3  and  5. 

12.  1S33,  c.  C,  s.  4. 


Chap.  LXXIV.]    mills  and  millers.  423 

or  them  to  be  made  defendants,  upon  his,  her  or  their  entering  into 
bond,  in  such  sum  as  the  court  may  require,  payable  to  the  pe- 
titioner or  petitioners,  conditioned  as  other  bonds  given  by  defend- 
ants in  civil  actions  ;  and  then  the  petition  shall  stand  against  the 
tenant  or  tenants,  so  notified  as  aforesaid,  and  the  owner  or 
owners,  so  made  parties  defendant  as  aforesaid,  and  in  that  case 
.the  sheriff  shall  give  written  notices,  five  days  previous  to  his  going 
with  the  jury  on  the  premises  as  hereinafter  directed,  to  the  tenant 
or  tenants  in  possession  of  said  mill,  and  no  notice  to  the  owner 
or  owners  shall  be  necessary. 

13.  Upon  the  hearing  of  any  petition,  filed  as  above  directed.  Upon  the  hear- 
it  shall  be  the  duty  of  the  court  to  order  a  writ  to  be  issued  to  the  1"?^°*^^^^ Pp^'^, 
sheriff  of  their   county,   commanding  him   to   summon   a  jury  of ceedings  are  to 
twentyfour   freeholders,  unconnected  with  the  parties  by  consan- ^^^.p^g/^f  J^^^- 
guinity  or  affinity,  and  entirely  disinterested,  no  one  of  whom  shall  mg  the  dam- 
be  the  owner  or  part  owner  of  any  public  mill,  or  mills  for  domestic  ^^e  verdfct^of' 
manufactures  or  other  useful  purposes,  to  meet  on  the  premises,  the  jury  re- 
on  a  certain  day,  of  which  he  shall  give  each  party  five  days  pre- [^"^^^^'^^"gugjj 
vious  notice  in  writing,  and  it  shall  be  the  duty  of  the  jury,  formed  verdict  shall  be 
by  drawing  twelve  out  of  twentyfour  summoned  as   aforesaid,  (in^"^  °'^^^' 

the  doing  which  each  party  may  challenge  either  peremptorily,  or 
for  cause,  as  in  other  civil  cases,)  after  appearing  at  the  place  and 
on  the  day  appointed,  and  having  taken  an  oath,  (which  the  sheriff 
or  deputy  is  hereby  authorized  to  administer,)  that  they  will  well 
and  truly  inquire  whether  any  damage  hath  been  sustained  by  the 
petitioner,  by  reason  of  the  erection  of  the  mill  complained  of, 
and  if  in  their  opinion  any  hath  been  sustained,  that  they  will  im- 
partially, according  to  the  best  of  their  judgment  and  ability,  assess 
the  amount,  which  said  petitioner  ought  annually  to  receive  from 
the  owner,  proprietor  or  tenant  of  said  mill  on  account  thereof; 
they  shall  proceed  to  view  and  examine  the  premises,  and  to  hear 
all  the  evidence  which  may  be  produced  on  both  sides  ;  they  shall 
then  retire  to  themselves  and  make  up  their  verdict,  as  to  the  sum 
which  the  petitioner  is  entitled  to  receive,  as  an  annual  compensa- 
tion for  the  damage  he  sustains,  by  reason  of  the  erection  of  the 
mill  complained  of,  reduce  the  same  to  writing,  sign  their  names 
thereto  and  deliver  it  to  the  sheriff,  sealed  up,  to  be  delivered  to 
the  court  from  whence  the  writ  issued,  at  the  next  ensuing  term  ; 
which  verdict  shall  be  binding  between  the  parties  for  the  term  of 
five  years,  unless  the  damages  should  be  increased  by  raising  the 
water  or  otherwise,  if  said  mills  are  kept  up,  from  the  filing  of 
the  petition,  unless  appealed  from  by  either  of  them. 

14.  In  all  cases  where  the  jury  shall    assess  the   yearly  damage  Provision  m 

.  •  •  C3.SPS  wiicrG 

as  high  as  the  sum  of  twenty  dollars,  nothing  contained  in  this  act  the  damages 
shall  be  so  construed  as  to  prevent  the  person  so  injured,  his  heirs  are  assessed  as 
or  assigns,  from  suing  as  heretofore  usual   in  such  cases  ;  and  m  dollars. 
such  cases,  the  verdict  of  the  jury  on  the  premises,  and  the  judg- 
ment thereon,  shall  only  be  binding  for  the  year's  damage  prece- 
ding the  filing  of  the  petition. 

13.  1809,  c.  773,  s.  1  —  1813;  c.  8G3,  6.  3. 

14.  1809,  c.  773.  s.  5. 


424 


MILLS    AND    MILLERS.      [ClIAP.  LXXIV. 


Provision  as  to 
costs  where  the 
verdict  is  that 
there  is  no 
damage,  or 
where  the 
damages  are 
under  five  dol- 
lars. 

How  execution 
shall  issue 
against  the 
defendant  for 
the  damages. 


What  pay  the 
sheriff  and  ju- 
rors shall  be 
entitled  to. 


Upon  appeals, 
the  trial  to  be 
had  at  bar  in 
the  superior 
court. 

Plaintiif  to  pay 
costs  if  he  ap- 
peals and  fails 
to  recover,  &c. 

Keepers  of 
public  mills  ex- 
empt from 
serving  on  ju- 
ries or  working 
on  roads. 


15.  If  the  verdict  of  the  jury  shall  be  that  the  petitioner  hath 
sustained  no  damage,  then  he  shall  pay  all  the  costs  of  his  petition, 
and  execution  shall  be  issued  therefor  by  the  clerk  of  the  court, 
but  if  in  favor  of  the  petitioner,  shall  be  issued  by  the  clerk  against 
the  defendant  for  the  amount  of  one  year's  damage  preceding  the 
fihng  of  the  petition  and  for  all  costs  :  Provided,  that  if  the  dam- 
age assessed  do  not  amount  to  five  dollars,  the  petitioner  shall  not 
recover  more  costs  than  damages  ;  and  if  the  defendant  do  not  an- 
nually pay  up  the  petitioner,  his  heirs  or  assigns,  before  it  falls 
due,  the  sum  assessed  by  said  verdict,  as  the  damages  to  be  paid 
annually,  such  petitioner,  his  heirs  or  assigns,  shall  be  at  hberty, 
annually  during  the  five  years,  to  apply  to  the  clerk  for  an  execu- 
tion against  him,  at  the  same  term  that  the  petition  was  filed,  in 
each  and  every  year,  for  the  amount  of  the  last  year's  damage,  or 
any  part  thereof,  which  may  remain  unpaid. 

16.  The  sheriff,  for  summoning  each  juror  or  witness,  shall  be 
entitled  to  twenty  cents,  and  each  juror  to  eighty  cents  per  day, 
for  attending  on  the  premises,  and  four  cents  per  mile  for  every 
mile  they  shall  travel  to  and  from  the  place  of  trial,  an  account  of 
which  they  shall  render  on  oath  to  the  sheriff  after  the  verdict  is 
made  up,  to  be  returned  therewith  to  the  court,  and  the  clerk 
shall  receive  the  same  fees  as  in  other  cases  of  petitions,  where  no 
copy  is  issued. 

17.  In  all  cases  arising  under  this  act,  where  either  party  shall 
appeal  from  the  county  to  the  superior  court,  the  trial  in  the  supe- 
rior court  shall  be  had  at  bar  :  And  if  the  plaintiff  shall  appeal,  and 
fail  to  recover  higher  damages  in  the  superior  court  than  were 
awarded  by  the  jury  on  the  premises,  he  shall  pay  all  the  costs  of 
his  appeal. 

18.  All  keepers  of  public  mills  shall  be  exempt  from  working 
on  roads  or  serving  on  juries. 

15.  1809,  c.  773,  s.  2.— 1833,  c.  6,  s.  6.— 1834,  c.  20. 

16.  1809,  c.  773,  s.  3. 

17.  1813,  c.  863,  s.  2.— 1809,  c.  773,  s.  4. 

18.  1S36,  amendment. 


Note. — References  to  Adjudged  Cases. 

Sect.  1.  Eason  vs.  Perkins,  2  Dev.  Eq.  33. 

Sect.  9.  Mumford  vs.  Terry,  2  Car.  Rep.  425.     Purcell  vs.  McCallum,  1  Dev.  and 
Rat.  221.  Gillet  rs.  Jones,  ib.  339. 

Sect.  14.  Gillet  vs.  Jones,  1  Dev.  and  Bat.  339-    Pugh  vs.  Wheeler,  2  Dev.  and  Bat. 


Chap.  LXXV.] 


MINES. 


425 


CHAPTER   75. 

MINES. 


AN  ACT  CONCERNING  IRON  AND  GOLD  MINES. 


Section 


Three  thousand  acres  of  land  granted 
for  the  use  of  iron  works  as  a  boun- 
ty— Entry  taker  to  make  out  a  copy 
of  the  bounty  land,  and  transmit  it 
to  the  county  court. 

Court  to  appoint  a  jury  to  view  the 
bounty  lands — Jury  to  make  their 
return,  and  the  same  to  be  recorded. 

Conditions  to  entitle  the  proprietors 
to  the  land  granted. 


Section 

4.  Manner  in  which  the  grants  are  to 

be  obtained— Proviso,  the  land  to 
revert  upon  failure  to  erect  the 
works. 

5.  Bounty  lands  to  be  exempt  from  taxes 

for  ten  years. 

6.  Lessors    of  gold   mines   not    to   be 

taken  as  partners  with  their  les- 
sees, unless  they  so  contract. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina^   and  it  is  hereby  enacted   by  the  authority  of  the  same, 

That   three  thousand   acres   of  vacant  land,  not  fit  for  cuhivation,  acres^of  land" 
most  convenient  to  the  different  seats,  is  hereby  granted  for  every  granted  for  the 
set  of  iron  works,  as  a  bounty  from  this  State,  to  any  person  or  works  as'a 
persons,  who  will  build  and  carry  on  the  same,   to  be  under  thel^ounty- 

I-  1 1        •  1  1  1    ,  ■  •  1  Entry  taker  to 

lollowmg  rules  and  regulations,  viz  :  where  any  person  or  persons  make  out  a 
intend  to  build  iron  works,  such  person  or  persons  may  proceed  to^opy  of  the 
the  entry  taker  of  the  county  where  he  intends  to  erect  such  works,  and"transmit  it 
and  enter,  in  one  or  more  tracts,  the  quantity  of  bounty   land   al-  to  the  county 
lowed   by  this   act  for  one   set  of  works,   and  the  entry  taker  is 
hereby  required  to  make  out  a  copy  of  the  land  entered  as  afore- 
said, and  transmit  the  same  to  the  next  court  that  shall  be  held  in 
the  county  in  which  he  is  entry  taker. 

2.  The  court  of  any  county  in  this    State,   upon   receiving   the  Court  to  ap- 
return  of  the  entry  taker  for  the  land  as  aforesaid,  shall  appoint  a  view  t^he"boun- 
jury  consisting  of  twelve  persons,  who  shall  proceed  to  view  the  ty  lands, 
land  in  their  county  entered  as  aforesaid,  and  if  they  shall  adjudge 

the  land   so   entered   not  fit  for  cultivation,  they  shall  certify  the  Jury  to  make 
same  in  writing,  and  return  the  certificate  to  the  next  court   held  Jh^same'toTe'^ 
in   their  county,    and   the   court  upon   receiving  such  return  shall  recorded. 
cause  the  certificate  to  be  recorded  by  the  clerk. 

3.  If  any   person  or  persons,  who   may  enter  land  agreeably  to  Conditions  to 

1  .  1     11  •  1  •  1  •        I  r    ^  r  entitle  the  pro- 

this  act,  shall  erect  iron  works  within  the  term  ol  three  years  irom  prietors  to  the 
the  time  of  the  jury's  return,  such  person  or  persons,  on  making  it  ^and  granted, 
appear  to  the  court  of  the  county  that  he  or  they  have  made  at  said 
works  five  thousand  weight  of  iron,  shall  receive  an  order  to  the 
entry  taker,  requiring  him  to  issue  the  warrants  for  the  bounty  lands. 


1.  1783,  c.  293,  s.  1. 

2.  1788,  c.  293,  s.  2. 

3.  1783,  c.  293,  s.  3. 

VOL.   I. 


54 


426 


MONEY  REMAINING,  ETC.    [ChAP.  LXXVI. 


Proviso,  the 
land  to  revert 
upon  failure  to 
erect  the 
works. 


Manner  in  4,   Such  entry  taker,  upon  receiving  such  order,  shall  proceed 

grants  are  to  be  ^'O  issue  Warrants  for  the  lands  granted  by  this  act,  without  receiv- 
obtained.  ing  any  money  for  the  State,  and  the  surveyor,  upon  receiving 
such  warrants,  shall  proceed  to  survey  the  same  as  soon  as  conve- 
nient, and  make  return  to  the  secretary's  office,  that  grants  may 
issue  for  the  same,  and  such  grant  or  grants  shall  be  as  good  and 
valid  to  the  proprietors  of  such  works,  their  heirs  or  assigns,  as  if 
the  purchase  money  had  been  paid  :  Provided  nevertheless,  that  if 
any  person  or  persons  shall  enter  land,  in  pursuance  of  this  act,  and 
fail  to  erect  iron  works  according  to  the  true  meaning  and  intent 
thereof,  the  land  so  entered  shall  revert  to  the  State,  unless  the 
person  who  has  entered  the  same  pays  the  purchase  money  for  the 
use  of  the  State. 

be°exem^Tfrom      ^"   "^^^  bounty  lands  granted  by  this  act,  shall  be  exempted  from 
taxes  for  ten     taxation  for  the  term  of  ten  years. 

years.  ^    jy^  lessor  or  lessors  of  property,   real  or  personal,  for  gold 

mines 'no"  to°be  i^fiining  purposes,  although  such  lessor  or  lessors  may  receive  a 
taken  as  part-  sum  uncertain  of  the  proceeds  or  net  profits,  or  any  other  con- 
leTs'ees^  unles"  sideration,  which,  though  uncertain  at  first,  may  afterwards  become 
they  so  con-  certain,  shall  be  held  as  a  partner  or  partners  of  the  lessee  ;  nor 
shall  any  of  the  legal  or  equitable  relations  or  liabilities  of  co-part- 
ners exist  between  them,  unless  it  be  so  stipulated  in  the  contract 
between  such  lessors  and  lessees. 


tract. 


4.  1788,  c.  293,  s.  4- 

5.  1788,  c.  293,  s.  5. 

6.  1830j  c.  46. 


CHAPTER  76. 

MONEY  REMAINING  IN  THE 
HANDS  OF  CLERKS,  &€. 


AN  ACT  PRESCRIBING  THE  DISPOSITION  OF  MONEY  REMAINING  IN 
THE  HANDS  OF  CLERKS  AND  SHERIFFS  A  CERTAIN  TIME. 


Section 

1.  Clerks  of  the  supreme,  superior  and 

county  courts,  and  clerks  and  mas- 
ters in  equity,  to  make  statements 
and  returns  of  all  moneys  remain- 
ing in  their  hands  for  three  years. 

2.  To  whom  such  moneys  shall  be  paid 

over,  subject  to  be  reclaimed  by  the 
rightful  owner. 

3.  Clerks,  and  clerks  and  masters,  fail- 

ing to  pay  over  such  moneys,  to  for- 
feit one  thousand  dollars. 

4.  Clerks,  and  clerks  and  masters,  failing 

to  pay  over  moneys  remaining  in 


Section 

their  hands,  how  to  be  proceeded 
against. 

5.  Sheriffs  and  coroners  to  pay  costs  on 

executions  to  the  clerks. 

6.  Sheriffs   to   account    and    pay  over 

moneys  in  their  hands  in  the  same 
manner  as  clerks,  &c. 

7.  Clerks,  &c.  to  set  up  a  statement  of 

their  returns  in  the  court  house 
for  six  months  before  making  such 
returns. 

8.  Penalty  on  clerks,  &c.  for  failing  to 

set  up  statements. 


CHA.r.  LXXVI.]    MONEY  REMAINING,  ETC.  427 

1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JSTortk 
CaroUnay  and  it  is  hereby  enacted    by  the   authority    of  the  samCy 
.  That  it  shall  he  the  duty  of  each  and  every  clerk  of  any  county  cjerks  of  the 
court,  superior  court  of  law,  clerk  and  master  in  equity,  and  clerk  supreme,  su. 
of  the  supreme  court  within  this   State,  at   the  first  session  of  the co^ty  wmrts 
court,  of  which  he   is    clerk,  which  shall  be   after  the  first  day  of  and  clerks  and 
August  in  each  and  every  year,  to  produce  to  said  court  a  statement,  Multy'^o'make 
to  be  made  on  oath,  of  all  moneys  remaining  in  his  hands,  which  statements  and 
were  received  by  him  officially  thi^ee  years  or  more  previous  thereto,  moneys *re-^ 
specifying  therein  the  amount  of  each  separate  claim,  and  the  name  raining  in 
of  the  person,  to  whom  the  same  is  payable  :  and  if  there  be  no  j^r^  years*  °^ 
such  moneys  in  liis  hands,  he  shall  make  affidavit  of  the   same, 
which  return  or  affidavit,  if  made  by  the   clerk  of  the  supreme 
court,  the  judges  of  the  said  court  shall  cause  to  be  transmitted  to 
the  pubhc  treasurer  of  this   State  ;  or  if  made  by  a  clerk  of  the 
county  court,  or  a  clerk  of  the  superior  court  of  law,   or  a  clerk 
and  master  in  equity,  the  judge  or  chairman  of  the  court,  before 
whom  it  is  made,  shall  cause  to  be  transmitted  to  the  officer  ap- 
pointed to  receive  and  disburse  the  county  funds,  on  or  before  the 
first  day  of  December  in  the  same  year. 

2.  The  clerk  of  the  supreme  court  shall,  on  or  before  the  first  To  whom  such 
day  of  December,  In   each  and  every   year,   after  the   foregoing ^°p^y|  ^^^^^ 
statements  are  made,  account  with   and  pay   over  to   the  public  subject  to  be' 
treasurer,  all  the  balances  aforesaid,  which  shall  be  held  by  him  in [he^j-™^tf  i^ 
trust  for  the  legal  claimants,   but^  whilst  unapphed  for,  shall  con- owner, 
stitute  a  part  of  the  general  fund  ;  and  the   clerks  of  the  county 

and  superior  courts  of  law,  and  the  clerks  and  masters  in  equity, 
shall,  within  the  same  time,  account  with  and  pay  over  all  the  bal- 
ances aforesaid,  to  the  officer  appointed  to  receive  and  disburse 
the  county  funds,  whose  duty  it  shall  be  to  receive  the  same,  and 
to  hold  it  subject  to  the  claims  of  the  rightful  owners,  and:,  until 
called  for  by  such  owners,  to  be  used  by  them  as  other  county 
funds. 

3.  Any  clerk  of  the  supreme  court,  faihng  to  comply  with  the  Clerks,  and 
duties  required  by  this  act,  shall  forfeit  and  pay  to  the  State  one  niasters,\ilino- 
thousand  dollars,  to  be  sued  for  and  recovered  by  the  public  trea- to  pay  over 
surer  in  the  superior  court  of  law  of  Wake  county  ;  and  be,  more- forMt^one^^'  ° 
over,  liable  to  pay  all  such  moneys,  as  he  may  be  chargeable  with  thousand  dol- 
under  the  provisions  of  this  act  ;  and   any  clerk  of  the  county  or 

superior  courts  of  law,  or  clerk  and  master  in  equity,  failing  as; 
aforesaid,  shall  forfeit  and  pay,  to  the  use  of  the  county  wherein; 
he  is  clerk,  or  clerk  and  master,  one  thousand  dollars,  to  be  sued 
for  and  recovered  by  the  proper  county  officer,  in  the  superior 
court  of  law  of  his  county,  and  be,  moreover,  liable  to  pay  such 
moneys  as  he  may  be  chargeable  with,  under  the  provisions  of 
this  act. 

4.  If  any  clerk,  or  clerk  and  master   as   aforesaid,   shall   fail  to  Clerks,  and 

clerks  and 

1.  1823,  c.  1186,  s.  1.— 1831,  c.  3,  s.  1  and  3. 

2.  1823,  c.  1186,  s.  2.— 1831,  c.  3,  s.  1  and  3. 
3  1823,  c.  1186,  s.  3.— 1831,  c.  3,  s.  2. 

4.  1823,  c.  use,  s.  4.— 1831,  c  3,  s.  2. 


428 


MONEY  REMAINING^  ETC.    [ChAP.  LXXVL 


masters,  failing 
to  pay  over 
moneys  re- 
maining in 
their  hands, 
how  to  be  pro- 
ceeded against. 


Sheriffs  -and 
coroners  to  pay 
costs  on  execu- 
tions to  the 
clerks- 


Sheriffs  to  ac- 
count and  pay 
over  moneys  in 
their  hands  in 
the  same  man- 
ner as  clerks, 
&c. 


Clerks,  &c. 
to  set  up  a 
statement  of 
their  returns  in 
the  court  house 
for  six  months 
before  making 
such  returns. 


Penalty  on 
clerks,  &c.  for 
failing  to  set 
up  statements. 


pay  any  money,  by  him  admitted  to  be  due  as  aforesaid,  on  or  be- 
fore the  first  day  of  December,  in  each  and  every  year,  &uch  clerk 
or  clerk  and  master,  may  be  proceeded  against  by  the  public  trea- 
surer, in  any  court  of  record  in  this  State,  or  by  the  proper  county 
officer  in  the  courts  of  his  own  county,  in  the  like  manner  as  against 
defaulting  revenue  officers. 

5.  It  shall  be  the  duty  of  the  sheriff  and  coroner  of  each  county 
to  pay  the  costs  on  all  executions,  v^hich  shall  be  satisfied  in  the 
whole  or  in  part,  to  the  clerk  of  the  court  from  which  such  execu- 
tion issued,  and  to  no  other  person,  on  the  second  day  of  the  term 
of  such  court ;  and  any  sheriff,  making  default  therein,  shall  be 
fined  the  sum  of  forty  dollars,  which  fine  shall  be  recovered  in  the 
name  of  the  State,  by  scire  facias,  in  the  same  manner  as  other 
fines,  and,  when  collected,  shall  be  paid  into  the  office  of  said 
clerk  for  the  purposes  above  directed. 

6.  All  sheriffs  now  in  office  shall,  at  the  same  time  prescribed 
in  the  first  section  of  this  act  for  clerks,  render  a  like  statement  to 
the  court  of  the  county  of  which  he  is  sheriff,  and  account  with 
the  officer,  appointed  to  receive  and  disburse  the  county  funds,  for 
all  balances  in  his  hands,  arising  under  the  provisions  of  this  act, 
in  the  same  manner  and  under  the  same  penalties  as  by  this  act  is 
provided  for  clerks. 

7.  Each  clerk  and  clerk  and  master  of  the  several  courts  of  law 
and  equity,  who  is  bound  by  the  provisions  of  this  act  to  make  a 
return  to  the  public  treasurer,  or  to  the  officer  appointed  to  receive 
and  disburse  the  county  funds,  on  oath,  of  all  moneys  remaining  in 
his  hands,  and  which  were  received  by  him  officially,  three  years 
or  more  previous  thereto,  shall  post  up  in  the  court  house  of  his 
county,  at  least  six  months  before  he  is,  by  the  provisions  of  this 
act,  bound  to  make  his  return,  a  list  of  all  such  moneys  with  the 
amount  of  each  claim,  and  the  name  of  the  person  to  whom  it  is 
payable,  that  the  person  entitled  may  have  an  oj)portunity  of  apply- 
ing for  the  same,  before  it  is  paid  into  the  public  or  the  county 
treasury. 

8.  Any  clerk  or  clerk  and  master,  who  shall  fail  to  comply  with 
the  provisions  of  the  last  section,  shall  forfeit  and  pay  the  sum  of 
twenty  dollars,  to  be  sued  for  and  recovered  before  any  justice 
of  the  peace  of  his  county,  one  half  to  the  use  of  the  person  suing 
for  the  same,  and  the  other  half  to  the  use  of  the  said  county. 


5.  1822,  c.  1149,  s.  1. 

C.  1823,  c.  1186,  s.  6.- 

7.  1828,  c.41,S.  1. 

8.  1828,  c.  41,  S.  2- 


-1831,  c.  3,  s.  1  and  2. 


Chap.  LXXVIIL]  names. — notaries. 


429 


CHAPTER  77. 

NAMES. 

AN  ACT  EMPOWERING  COURTS  OF  RECORD  TO  CHANGE  NAMES. 


Section 

1.  Superior  courts  may,  upon  petition, 
change  the  name  of  any  person  de- 
siring it. 


Section 
2.  Repealing  clause. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  ofJ^orth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

That  whenever  any  person  shall  be  desh'ous  to  change  his  or  her  Superior  courts 
name,  it  shall  be  lawful  for  him  or  her  to  file  a  petition  in  any  su-  J^.^^-  "P°'i  P^- 

.  •  1  1  11  11  tition,  change 

penor  court,  praymg  that  the  same  may  be  clone  ;  and  thereupon  the  name  of 
the  court,  at  the  same  term  of  filing  the  petition,  may  decree  for  gi"Lr[^^°"  ^^' 
the  petitioner  according  to  his  prayer  ;  and  the  person,  whose  name 
is  thus  changed,  may  sue  and  be  sued  in  his  or  her  new  name. 

2.  All  laws  and  clauses  of  laws,  coming  within  the  meaning  and  Repealing 
purview  of  this  act,  shall  be  and  the  same  are  hereby  repealed. 


CHAPTER  78. 


NOTARIES 


AN  ACT  PROVIDING  FOR  THE  APPOINTMENT  OF  NOTARIES. 


Section 
1.  Governor  to  appoint  one  or  more  no- 
taries in  each  county— Notaries  to 
take  oaths. 


Section 

2.  Clerks,  and  clerks  and  masters,  may 

act  as  notaries. 

3.  Fees  of  clerks,  &c.  when  acting  as 

notaries. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same. 
That  the  governor  for  the  time  being  may.  from   time   to  time  at  *3overnor  to 

,  .      ,.  °  .  o         J  .  !•/•     1  appomt  one  or 

his  discretion,  appomt  one  or  more  persons  properly  quahned,  to  more  notaries 
act  as  notary  or  notaries  in   each   and  every  county  in  this  State, '"  '^^^^  county. 
and  the  said  notaries  and  every  of  them,  shall  take   the   oath  ap-  take  oaths. 

1.    1777,  c.  lis,  s.  15. 


430 


OATHS. 


[Chap.  LXXIX. 


Clerks,  and 
clerks  and 
masters,  may 


pointed  to  be  taken  for  the  qualification  of  public  ofScers,  and  also 
an  oath  of  office,  which  oaths  may  be  taken  in,  and  administered 
by,  the  court  of  the  county  in  which  such  notary  shall  reside. 

2.  It  shall  be  lawful  for  each  of  the  clerks  of  the  courts  of  record 
in  this  State,  and  for  the  clerks  and  masters  in  equity,  to  act  as 
act  as  notaries,  notaries  public,  in  their  several  counties,  by  virtue  of  their  said 
offices  of  clerk  and  clerk  and  master,  and  they  shall  certify  their 
acts  as  notaries  public,  whenever  the  same  are  to  be  used  out  of 
the  county,  under  the  seal  of  the  court  of  which  they  may  be  clerks 
or  clerks  and  masters. 
Fees  of  clerks,  3.  The  fees  of  clerks  and  clerks  and  masters,  as  notaries,  shall 
iiigasnotaries.be  the  same  as  now  fixed  by  law  for  the  service  of  a  notary  pub- 
lic, and  for  services  where  the  law  fixes  no  fee,  they  shall  not  de- 
mand a  larger  fee  than  twenty  cents  for  every  ninety  \vords. 


2.  1833,  c.  7,  s.  1  and  2. 

3.  1833,  c.  7,  s.  3. 


CHAPTER  79. 


OATHS. 


AN   ACT  CONCERNING  OATHS. 


Section 


3. 


4. 


Oaths,  how  to  be  administered. 

A  person  conscientiously  scrupulous 
of  laying  his  hands  on  the  Scrip- 
tures, to  be  sworn  with  an  uplifted 
hand. 

Quakers,  Moravians,  Dunkards  and 
Menonists  to  be  affirmed — Their  af- 
firmation to  be  received  in  all  cases, 
civil  and  criminal. 

Oaths  or  affirmations  to  support  the 
Constitution  of  the  United  States 
and  of  this  State,  to  be  taken  by  all 
officers. 

5.  Also  an  oath  to  support  the  constitu- 

tion of  the  United  States. 

6.  Oath  of  the  governor — 0/  the  secre- 

tary of  state — Of  the  public  treasu- 
rer— Of  the  comptroller— Of  a  judge 
of  the  supreme  court — Of  a  judge 
of  the  superior  courts — Of  the  at- 
torney general  and  solicitors — Of  a 
justice  of  the  peace — Of  the  clerk 
of  the  supreme  court — Of  a  clerk 
of  the  superior  courts— Of  clerk 
and  master — Of  a  clerk  of  the 
county  courts— Of  a   sheriff- Of  a 


Section 

coroner — Of  a  county  attorney — Of 
a  constable — Of  a  county  trustee — 
Of  a  register — Of  a  standard  keep- 
er— Of  a  ranger — Of  an  entry  taker 
— Of  a  county  surveyor — Of  a  pro- 
cessioner — Of  inspectors  of  tobacco 
— Of  a  picker  of  tobacco — Of  an 
inspector  of  flour — Of  inspectors  of 
other    articles     than  tobacco    and 
flour — Of  an  attorney  at    law — Of 
a  witness  on   a  state  trial — Of  a 
witness  on  a  traverse — Of  a  witness 
in    civil    cases— Of   a  witness  to 
prove  a  will — Of  a  witness  to  be 
sent  to  the  grand  jury — Of  a  petit 
jury  in  a  capital  case — Of  a  petit 
jury  in  criminal  cases  not  capital — 
Of  a  jury  in  civil  cases — Of  a  jury 
laying  off  dower — Of   a    jury   to 
assess    damages    for    overflowing 
land — Of  the  foreman  of  a   grand 
jury — Of  the  other  grand  jurors— 
Of  a  constable  charged  with  a  jury 
— Of  a  constable  to  attend  the  grand 
jury — Of  an  executor — Of  an  ad- 
ministrator— Of  commissioners  di- 


f 


Chap.  LXXIX.] 


OATHS. 


431 


Section 

"viding  and  allotting  real  estate — 
Of  conuTiissioners  allotting  a  year's 
provision — Of  valuers  of  strays- 
Book  debt  oath — Book  debt    oath 


Section 

for  an    executor  or  administrator. 
7.  Deputies  to   administer   oaths  vrher- 
ever  their  principals  are  authorized 
to  do  so. 


Whereas,  lawful  oaths,  for  the  discovery  of  truth  and  estab- 
lishing right,  are  necessary  and  highly  conducive  to  the  important 
end  of  good  government,  and  being  most  solemn  appeals  to  Al- 
mighty God,  as  the  omniscient  witness  of  the  truth,  just  and  om- 
nipotent avenger  of  falsehoods  such  oaths,  ought,  therefore,  to  be 
taken  and  administered  with  the  utmost  solemnity  : 

1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted  by    the    authority  of  the  same, 

That  judges  and  justices  of  the  peace,  and  other  persons,  who  are  oaths,  how  to 
and  shall  be  empowered  to  administer   oaths,  shall  (except  in  the  be  administer- 
cases  in  this  act  excepted)  require  the    party  to  be  sworn,  to    lay*^ 
his  hand  upon  the  holy  evangelists  of  Almighty  God,  in  token   of 
his  engagement  to  speak  the  truth,  as  he  hopes  to  be  saved  in  the 
way  and  method  of  salvation,  pointed  out  in  that  blessed  volume, 
and  in  further  token,  that,  if  he  should  swerve  from  the  truth,  he 
may  justly  be   deprived  of  all   the   blessings   of  the   gospel,  and 
made  hable  to  that  vengeance,  which  he  has  imprecated  on  his  own 
head  ;    and,  after  repeating  the  words  "  So  help  me  God,"    shall 
kiss  the  holy  gospels,  as  a  seal  of  confirmation  to  the  said  engage- 
ments. 

2.  In  all  cases  when  any  judges,  iustices  of  the  peace,  or  other  ^  P*^^,!™  ^oji- 

,     „  ,  J   J       O      1  J  1      .    .  ^  „  scientiously 

persons  are  or  shall  be   empowered  to   admmister  any   manner   oi  scrupulous  of 
oath  in  this  State,  and  the  person  to  be  sworn,  shall  be   conscien-||^^'^^^§^^^®, 
tiously  scrupulous  of  taking  a  book  oath  in  manner  aforesaid,  and  Scriptures,  to 
pray  the  benefit  of   this  act,  it  shall  be  lawful  for  all   such  judges  ^^  ^J^i^^g^^^'^ 
and  justices  and  other   persons,  and   they  and  each   of  them   are  hand, 
hereby  required,  to  excuse  such  person  from  laying  hands  upon,  or 
touching  the  holy  gospels  ;    and  the  said  judges,  justices  and  oth- 
ers, are  hereby  directed  in  such  case  to  administer  the  oath  required, 
in  the  following   manner,  to   wit  :    the    party,  so    conscientiously 
scrupulous  and  praying  the  benefit  of  this  act,  shall  stand  with  his 
right  hand  lifted  up  towards  heaven,  in  token  of  his  solemn  appeal 
to  the  supreme  God,  whose  dweUing  is  in  the  highest  heavens,  and 
also  in  token,  that  if  he  should   swerve   from  the  truth,  he  would 
draw  down  the  vengeance  of  heaven  upon    his  head,  and   shall  in- 
troduce the  intended  oath  with  these  words,  viz  :   "  I,  A.  B.,  do 
appeal  to  God,  as  a  witness  of  the  truth  and  avenger  of  falsehood, 
as  I  shall  answer  the  same  at  the  great  day  of  judgment,  when  the 
secrets  of  all  hearts   shall   be   known,  that,   &c."  as  the  words   of 
the  oath  may  be.     And  it  is  hereby  declared,  that  an  oath  thus  ad- 
ministered and  taken,  with  the  right  hand  lifted  up,  is  and  shall  be 
a  lawful  oath  in  this  State,  and  such  oath   shall   be   admitted   and 
used  in  all  courts  in  this  State,  where  the  same  shall  be   required 


1.  1777,  c.   lOS,  s.  2. 

2.  1777,0.  108,  s.  3. 


432  OATHS.  [Chap.  LXXIX. 

as  aforesaid,  and  shall  be  equally  good  and  valid  in  law  to  all  intents 
and  purposes,  as  if  the  same  oath  had  been  taken  by  the  party  hav- 
ing laid  his  hand  upon,  and  kissed  the  holy  gospels. 
Quakers,  Mo-  3.  The  solemn  affirmation  of  Quakers,  Moravians,  Dunkards 
ravians,  Dunk- and  Menonists,  made  in  the  manner  heretofore  used  and  accus- 
onists'tobe'^af- tomed,  shall  be  admitted  as  evidence  in  all  criminal  cases,  as  well 
firmed.  gg  in  civil  Controversies  in  this  State  ;  and  in  all  cases  where  other 

atioTto  be  re-  persons  are  required  to  take  an  oath  to  support  the  constitution  of 
ceived  in  all  this  State,  or  of  the  United  States,  or  an  oath  of  office,  the  said 
criminaT7^  ^  Quakers,  Moravians,  Menonists  and  Dunkards,  shall  make  their  sol- 
emn affirmation,  in  the  words  of  the  said  oath  or  oaths  beginning 
after  the  word  "  swear,"  which  affirmation  shall  be  as  good  and 
effectual  to  all  intents  and  purposes,  as  if  they  had  taken  the  oaths 
aforesaid.  / 

Oaths  or  af-  4.   Every  person,  who  shall  be  chosen  or  appointed  to  hold  any 

supfTortthe"     office  of  trust  or  profit  in  this  State,  shall,  before  his  entering  upon 
constitutions  of  the  exccution  of  the  office,  to  which  he  shall  have  been  chosen  or 
States'^an^d  of    appointcd,  take  and  subscribe    the  following   oath  or  affirmation  : 
this  State,  to  be  "  I,  A.  B.,  do  Solemnly  and  sincerely  swear  or  affirm,  that  I  will 
?ce?s.  ^^  "^^^  °^"  be  faithful  and  bear  true  allegiance  to  the  State  of  North  Carolina, 
and  to  the  constitutional  powers  and  authorities,  which  are  or  may 
be  established  for  the  government  thereof,  and  that  I  will  endeavor 
to   support,   maintain  and    defend  the  constitution  of  said  State, 
not  inconsistent  with  the  constitution  of  the   United  States,  to  the 
best  of  my  knowledge  and  ability  :   so   help  me  God."     Where 
such  person  shall   be  of  the  people   called   Quakers,  Moravians, 
Menonists  or  Dunkards,  he  shall  take  and  subscribe  to  the  follow- 
ing affirmation  :   "I,    A.   B.,    do   solemnly  and  sincerely  declare 
and  affirm,  that  I  will  truly  and  faithfully  demean  myself  as  a  peace- 
able citizen  of  North  Carolina  ;  that  I  will  be  subject  to  the  powers 
and  authorities,  that  are  or  may  be  established  for  the  good  gov- 
ernment thereof,  not  inconsistent  with  the  constitution  of  the  said 
State  and  the  constitution  of  the  United   States,  either  by  yielding 
an  active  or  passive  obedience  thereto,  and  that  I  will  not  abet  or 
join  the  enemies  of  this   State,    by  any  means,    in   any  conspiracy 
whatever,  against  the  said  State  ;   that  I  will  disclose   and  make 
known  to  the  legislative,  executive    or  judicial  powers  of  the  said 
State,  all  treasonable  conspiracies,  which  I  shall  know  to  be  made, 
or  intended  against  the  said  State." 
Also  an  oath  to      5.   All  members  of  the  General  Assembly,  and  all  officers  who 
consthutkin  of  ^^^'^  ^^  elected,  chosen  or  appointed  to  any  office  of  trust  or  profit 
the  United       within  this  State,  shall,  agreeably  to  act  of  congress,  take  the  fol- 
States.  lowing   oath  or   affirmation  :   "I,  A.  B.,   do   solemnly  swear   (or 

affirm,  as  the  case  may  be,)  that  I  will  support  the  constitution  of 
the  United  States  :"  which  oath  shall  be  taken  by  all  members  of 
the  General  Assembl}^,  and  by  all  other  persons,  who  shall  be 
chosen  or  appointed  to  any  office  of  trust  or  profit  within  this 
State,  before  they  enter  upon  the  execution  of  the  office,  to  which 
they  shall  have  been  chosen  or  appointed. 

3.  irrr,  C  lOS,  s.  4.— 1777,  c.  115,  s.  42.— 1S19,  c.  1019.— 1821,  c.  lUS. 

4.  1791,  c  342,  s.  1. 

5.  1791,  c.  342,  s.  2. 


Chap..  LXXIX.]  oaths.  433 

6.  The  oaths  of  office  to  be  taken  hy  each  and  every  officer, 
elected  or  appointed  under  the  constitution  and  laws  of  this  State,, 
shall  be  in  the  following  words  respectively. 


THE    OATH    OP    THE    GOVERNOR. 


I,  A.  B.,  do  swear  or  affirm  (as  the  case  may  be,)  that  as  gov- Oath  of  the 
emor  of  the  State  of  North  Carolina,  I  will  execute  the  duties  of  S"^'""""^- 
that  important  office  without  favor  or   affection,   agreeably  to  the 
constitution  and  laws  of  the  State,  and   according   to   the   best  of 
my  skill  and  ability  :  so  help  me  God.. 


THE  OATH  OF  THE  SECRETARY  OF  STATE. 


I,  A.  B,,  do  swear  (or  affirm)  that  I  will  in  all  cases  faithfully  Of  the  secre- 
and  honestly  execute  the  office  of  secretary  of  state  of  the  State^^"^^  of  state. 
ol  North  Carolina,  during  my  continuance   in   office,  according  to, 
law. 

THE  OATH  OF  THE  PUBLIC  TREASURER. 

I,  A.  B.,  do  swear  (or  affirm)  that,  according  to  the  best  of  my  of  the  public 
abilities  and  judgment,  I  will  execute  impartially  the  office  of  pub-  treasurer. 
lie  treasm'er  in  all  things  according  to  the  law,  and  account  for  the 
public  taxes,   and  I  will  not  directly  or  indirectly  apply  the  public 
money  to  any  other  use  than  by  law  directed  :  so  help  me  God. 

THE  OATH  OF  THE  COMPTROLLER. 

I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  well  and  truly  Of  the  comp- 
execute  the  trust  reposed  in  me  as  comptroller,  without  favor  or  '°  '^'^' 
partiality,,  according  to  law,  to  the  best  of  my  knowledge  and  abil- 
ity :  so  help  me  God. 

THE  OATH  OF  A  JUDGE  OF  THE  SUPREME  COURT. 

I,  A.  B.,  do  solemnly  swear  (or  affirm)  that,  in  my  office  of  Of  a  judge  of 
judge  of  the  supreme  court  of  North  Carolina,  I  will  administer  court?^'^'^"^^ 
justice  without  respect  to  persons,  and  do  equal  right  to  the  poor 
and  the  rich,  to  the  State  and  to  individuals,  and  that  I  will  honest- 
ly, faithfully  and  impartially  perform  all  the  duties  of  the  said  office, 
according  to  the  best  of  my  abiUties  and  agreeably  to  the  constitu- 
tion and  laws  of  the  State  :  so  help  me  God. 

THE  OATH  OF  A  JUDGE  OF  THE  SUPERIOR  COURT  OF  LAW  AND  EQUITY. 

I,  A.  B.,  do  solemnly  swear  (or  affii'm)  that  I  will  well  and  truly  Of  a  judge  of 
serve  the  State  of  North  Carolina  in  the  office  of  judge  of  the  supe-  eourls!'"^"'^ 
rior  courts  of  law  and  equity  of  the  said  State  ;  1  will  do  equal  law 
and  right  to  all  persons,  rich  and  poor,  without  having  regard  to  any 
person.      I  will  not  wittingly  or  willingly  take,  by  myself  or  by  any 
other  person,  any  fee,  gift,  gratuity  or  reward  whatsoever,  for  any 

6.  1798,  c.  503,  s.  3.— 1S27,  c.  1,  s.  10  —1782,  c.  17-!,  s.  2.— 1818,  c.  963,  s.  1.— 1777, 
c.  11.5,  s.  5.— 1777,  c.  115,  s.  52.  — 1818,  c.  9G3,  s.  5. — 1777,  c.  115,  s.  4.— 183i,  c.  2,  s.  4. 
—1787,  <.-.  278,  S.  3.-1777,0.  115,  S.  61.— 1777,  c.  118,  s.  1.-1741,  c.  24,  s.  2.— 1833,  c. 
5,  s.  2.-1777,  c.  118,  s.  13.-1741,  c.  32,  s.  6.— 1777,  c.  114,  s.  13.— 1792,  c.  365,  s.  3.— 
1777,  c.  120,  s.  4,-1787,  c.  265,  s.  5.— 1810,  c.  790,  s.  10.-1784,  c.  206,  s.  2.-1777,  c. 
115,  s.  8. — Amended. 

VOL.  I.  55 


434  OATHS.  [Chap.  LXXIX. 

matter  or  thing  by  meto  be  done  by  virtue  of  my  office,  except  the 
fees  and  salary  by  law  appointed  ;  I  will  not  maintain,  by  myself  or  by 
any  other  person,  privately  or  openly,  any  plea  or  quarrel  depend- 
ing in  any  of  the  said  courts  ;  I  will  not  delay  any  person  of  com- 
mon right,  by  reason  of  any  letter  or  command  from  any  person  or 
persons  in  authority  to  me  directed,  or  for  any  other  cause  what- 
soever, and  in  case  any  letter  or  orders  come  to  me  contrary  to 
law,  I  will  proceed  to  enforce  the  law,  such  letters  or  orders  not- 
withstanding ;  I  will  not  give  my  voice  for  the  appointment  of  any 
person  to  be  clerk  of  any  of  the  said  courts,  but  such  of  the  can- 
didates as  appear  to  me  sufficiently  qualified  for  that  office,  and  in 
all  such  appointments  I  will  nominate  without  reward,  hope  of  re- 
ward, prejudice,  favor  or  partiality,  or  any  other  sinister  motive 
whatsoever  ;  and  finally,  in  all  things  belonging  to  my  office,  dur- 
ing my  continuance  therein,  I  will  faithfully,  truly  and  justly,  ac- 
cording to  the  best  of  my  skill  and  judgment,  do  equal  and  impartial 
justice  to  the  public  and  to  individuals  :  so  help  me  God. 


THE  OATH  OF  THE  ATTORNEY  GENERAL  AND  SOLICITOKS. 


solicitors. 


Of  tlieattorney  ^^  ^"  ■^•'  ^°  solemnly  swear  (or  affirm)  that  I  will  well  and  truly 
general  and  serve  the  State  of  North  Carolina  in  the  office  of  attorney  general 
(or  solicitor)  ;  I  will,  in  the  execution  of  my  office,  endeavor  to 
have  the  criminal  laws  fairly  and  impartially  administered,  so  far  as 
in  me  lies,  according  to  the  best  of  my  knowledge  and  abihty  :  so 
help  me  God. 


THE  OATH  OF  A  JUSTICE  OF  THE  PEACE. 


Of  a  justice  of      I,   A.  B.,  do  solemnly  swear  (or  affirm)  that  as  a  justice  of  the 
t  e  peace.         peace,  and  as   a  justice  of  the  county  court  of  pleas  and  quarter 
sessions  in  the  county  of  ,  in  all  articles  in  the  commission 

to  me  directed,  1  will  do  equal  right  to  the  poor  and  to  the  rich, 
to  the  best  of  my  judgment  and  according  to  the  laws  of  the  State  ; 
I  will  not,  privately  or  openly,  by  myself  or  any  other  person,  be 
of  counsel  in  bmj  quarrel  or  suit  depending  before  me,  and  I  will 
hold  the  quarter  sessions  and  county  courts  of  my  county,  as  the 
statutes  in  that  case  shall  and  may  direct  ;  the  fines  and  amerce- 
ments that  shall  happen  to  be  made,  and  the  forfeitures  that  shall 
be  incurred,  I  will  cause  to  be  duly  entered  without  concealment  ; 
I  will  not  wittingly  or  wiUingly  take,  by  myself  or  by  any  other 
person  for  me,  any  fee,  gift,  gratuity  or  reward  whatsoever  for  any 
matter  or  thing,  by  me  to  be  done  by  virtue  of  my  office,  except 
such  fees  as  are  or  may  be  directed  and  limited  by  statute,  but 
well  and  truly  I  will  do  my  office  of  justice  of  the  peace,  as  well 
within  the  county  court  of  pleas  and  quarter  sessions  as  without  ; 
I  will  not  delay  any  person  of  common  right,  by  reason  of  any  let- 
ter or  order  from  any  person  or  persons  in  authority  to  me  directed, 
or  for  any  other  cause  whatever,  and  if  any  letter  or  order  come  to 
me  contrary  to  law,  I  will  proceed  to  enforce  the  law,  such  letter  or 
order  notwithstanding.  I  will  not  direct,  or  cause  to  be  directed, 
any  warrant  by  me  to  be  made  to  the  parties,  but  will  direct  all  such 
warrants  to  the   sheriffs  or  constables  of  the  county,  or  the  other 


Chap.  LXXIX.]  oaths.  435 

officers  or  ministers  of  the  State,  or  other  indifferent  persons  to  do 
execution  thereof ;  and  finally,  in  all  things  belonging  to  ray  office, 
during  my  continuance  therein,  I  will  faithfully,  truly  and  justly, 
and  according  to  the  best  of  my  skill  and  judgment,  do  equal  and 
impartial  justice  to  the  pubHc  and  to  individuals  :  so  help  me 
God. 

THE  OATH  OF  THE  CLERK  OF  THE  SUPREME  COURT. 
» 

I,  A.  B.,  do  swear  (or  affirm)  that,  by  myself  or  any  other  Of  the  clerk  of 
person,  I  neither  have  given  or  will  give  to  any  person  or  persons  coun"^'^^""^ 
whatsoever,  any  gratuity,  gift,  fee,  or  reward,  in  consideration  of 
my  appointment  to  the  office  of  clerk  of  the  supreme  court  of 
North  Carolina,  nor  have  I  sold  nor  offered  to  sell,  nor  M'ill  I  sell 
nor  offer  to  sell,  my  interest  in  the  said  office  ;  I  also  solemnly 
swear  that  I  do  not,  directly  or  indirectly,  hold  any  other  lucra- 
tive office  in  this  State  ;  I  do  further  swear  that  I  will  execute  the 
office  of  clerk  of  the  supreme  court  without  prejudice,  favor, 
affection  or  partiality,  to  the  best  of  my  skill  and  ability  :  so  help 
me  God. 

THE  OATH  OF  A  CLERK  OF  THE  SUPERIOR  COURTS  OF  LAW. 

I,  A.  B.,  do  swear  (or  affirm)  that,  by  myself  or  any  other  per- of  a  clerk  of 
son,  I  neither  have  given  nor  will  I  give  to  any  person  or  persons  ^^®  j"P®"°"^ 
whatsoever,  any  gratuity,  gift,  fee   or   reward,  in  consideration    of 
my  election  or  appointment  to  the  office  of  clerk  of  the  superior 
court  of  law  for  the  county  of  ,  nor  have  I  sold  nor  offered 

to  sell,  nor  will  I  sell  nor  offer  to  sell,  my  interest  in  the  said 
office  ;  I  also  solemnly  sw^ear  that  I  do  not,  directly  or  indirectly, 
hold  any  other  lucrative  office  in  the  State  ;  and  I  do  further 
swear,  that  I  will  execute  the  office  of  clerk  of  the  superior  court 
of  law  for  the  county  of  ,  without  prejudice,   favor,  affec- 

tion or  partiality,  to  the  best  of  my  skill  and  abihty  ::  ^o  help  me 
God. 

THE  OATH  OF  A   CLERK  AND  MASTER  IN  EQ.UITY-., 

The  same  as  the  oath  prescribed  for  a  clerk  of  the  superior  ^^  ^  ^^^^^  ^'id 
courts  of  law,  mutatis  mutandis. 

THE  OATH  OF  A  CLERK  OF  THE  COURTS  OF  PLEAS  AND  QUARTER  SESSIONS. 

The  same,  mutatis  mutandis,  as  that  prescribed  for  the  clerks  of  Of  a  clerk  of 
the  superior  courts  of  law.  courts'.™^'*' 

THE  OATH  OF  A  SHERIFF. 

I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  execute  the  Of  a  sheriir. 
office  of  sheriff  of  county  to  the  best  of  my  knowledge  and 

ability,  agreeably  to  law,  and  that  I  will  not  take,  accept  or  receive, 
directly  or  indirectly,  any  fee,  gift,  bribe,  gratuity  or  reward  what- 
soever, for  returning  any  man  to  serve  as  a  juror,  or  for  making 
any  false  return  on  any  process  to  me  directed  ;  and  I  also  swear 
that  I  have  not  given  any  fee,  gift,  gratuity  or  reward  or  other  thing 
whatsoever,  to  any  person  or  persons,  for  his  or  their  vote  or  in- 
terest to  procure  me  to  be  nominated  to  the  said  office,  nor  will  I 
hereafter  give  to  any  person  or  persons  such  fee,  gift,  gratuity  or 


436  OATHS.  [Chap.  LXXIX, 

reward,  for  having  procured  or  contributed  to  procure  me  to  be 
nominated  thereto  :  so  help  me  God. 


THE  OATH  OF  A  CORONER. 


Of  a  coroner.  I,  A.  B.,  do  solemnly  swear  (or  affirm)  that,  in  all  things,  I  will 
diligently,  faithfully  and  impartially  execute  the  office  of  coroner 
for  the  county  of  ,  according  to  law  and  according  to  the  best 

of  my  skill  and  ability ,:  so  help  me  God. 

THE  OATH  OF  A  COUNTY  ATTOR^tEY. 

Of  a  coKirty  at-      I,  A.  B.,  d<5  solemnly  swear  (or  affirm)  that  I  will  well  and  truly 
torney.  ^^^^^  ^^^  g^^^^  ^^  attorney  for  the  county  of  ,  and  that  I  will 

faithfully  and  impartially  perform  all  the  duties  of  my  office  accord- 
ing to  law,  and  according  to  the  hest  of  mj  knowledge  and  ability  : 
so  help  me  God. 

THE  GATH  OF  A  CONSTABLE, 

Of  a  constable.  I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  well  and  truly 
serve  the  State  of  North  Carolina  in  the  office  of  a  constable  ;  I  will 
see  and  cause  the  peace  of  the  State  to  be  well  and  truly  preserved 
and  kept  according  to  my  power .;  I  will  arrest  all  such  persons 
as,  in  my  sight,  shall  ride  or  go  armed  offensively  or  shall  commit 
or  make  any  riot,  affray  or  other  breach  of  the  peace  ;  I  will  do 
my  best  endeavor,  upon  complaint  to  me  made,  to  apprehend  all 
felons  and  rioters  or  persons  riotously  assembled,  and  if  any  such 
offenders  shall  make  resistance  with  force,  I  will  make  hue  and  cry 
and  will  pursue  them  according  to  law,  and  will  fahlifully  and  with- 
out delay  execute  and  return  all  lawful  precepts  to  me  directed  ;  I 
will,  well  and  truly,  according  to  my  knowledge,  power  and  ability, 
do  and  execute  all  other  things  belonging  to  the  office  of  a  consta- 
ble, so  long  as  I  shall  continue  in  office  :  so  help  me  God. 

THE    OATH    OF    A    COUNTY    TRUSTEE. 

tJustee"™^^  I?  A.  B.,  do  solemnly  swear  (or  affirm)  that,  according  to  the 

best  of  my  skill  and  ability,  I  will  execute  impartially  the  office  of 
county  trustee  for  the  county  of  ,  in  all  things    according  to 

the  law,  that  1  will  duly  and  faithfully  account  for  all  public  moneys 
that  may  come  into  my  hands,  and  will  not,  directly  or  indirectly, 
apply  the  same  or  any  part  thereof  to  any  other  use  than  by  law 
directed  :  so  help  me  God. 


THE    OATH     OF    A    REGISTER. 


Of  a  register.  I?  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  and 
truly,  according  to  the  best  of  my  skill  and  ability,  execute  the 
office  of  register  for  the  county  of  ,  in  all  things  according  to 

law  :  so  help  me  God. 

THE    OATH    OF    A    STANDARD    KEEPER. 

Of  a  standard       I,  A.  B.,  swear  (or  affirm)  that  I  will  not  stamp,  seal  or  give  any 

eeper.  certificate  for  any    steelyards,  weights   or  measures,  but  such  as 

shall,  as  near  as  possible,  agree  with  the    standard  in  my  keeping  ; 


Chap.  LXXIX.]  oaths.  437 

and  that  I  will,  in  all  respects,  truly  and  faithfully  discharge  and 
execute  the  power  and  trust,  by  law  reposed  in  me,  to  the  best  of 
my  ability  and  capacity  :  so  help  me  God. 


THE    OATH    OF    A    BANGER. 


L       I,  A.  B.,  do  swear  (or  affirm)  that  I  will  well  and  truly  execute  Of  a  ranger, 
the  office  of  a  ranger  for   the  county  of  ,  according   to   the 

best  of  my  skill  and  ability  :  so  help  me  God. 


THE  OATH  OF  AN  ENTRY  TAKER. 


I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  well  and  im- Of  an  entry 
partially  discharge  the  several  duties  of  the  office  of  entry  taker      ®'^" 
for  the  county  of  ,  according  to  law  :  so  help  me  God. 


THE  OATH  OF  A  COUNTY  SURVEYOR. 


The  same,  mutatis  mutandis,  with  that  of  entry  taker.  Of  a  county 

surveyor. 


THE    OATH    OF    A    PROCESSIONER. 


sioner. 


I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  well  and  truly  Of  a  proces- 
execute  the  duty  and  trust,  enjoined  by  the  act  for  processioning ' 
lands  in  this  State,  according  to  the  best  of  my  skill  and  ability, 
without  favor  or  partiahty  to  any  person  or  persons  whatsoever  :  so 
help  me  God. 


THE    OATH    OF    INSPECTORS    OF     TOBACCO. 


I,  A.  B.,  swear  (or  affirm)  that  I  will  carefully  and  diligently  Of  inspectors 
view  and  examine  all  tobacco,  brought  to  any  public  warehouse,  tobacco, 
whereof  I  am  appointed  to  be  inspector,  and  all  other  tobacco, 
which  I  may  be  called  upon  to  view  and  inspect,  and  that,  not  sep- 
arate and  apart  from  my  fellow,  but  in  his  presence  ;  and  that  I 
will  not  receive  any  tobacco,  that  is  not,  in  my  judgment,  sound, 
well  conditioned,  merchantable,  and  clear  of  trash,  nor  receive, 
pass  or  stamp  any  tobacco,  hogsheads  or  cask  of  tobacco,  prohib- 
ited by  law  ;  and  that  I  will  not  change,  alter,  or  give  out  any 
tobacco,  other  than  such  hogshead  or  cask,  for  which  the  receipt 
to  be  taken  in  was  given,  but  that  I  will,  in  all  things,  well  and 
faithfully  discharge  my  duty  in  the  office  of  inspector,  according  to 
law,  without  fear,  favor,  affection,  malice  or  partiality  :  so  help 
me  God. 


THE    OATH    OF    A    PICKER    OF    TOBACCO. 


1,  A.  B.,  do  swear  (or  affirm)  that  I  will  faithfully  pick  all  to- ^fji^ picker  of 
bacco,  which  may  be  put  into  my  possession  for  that  purpose,  with- 
out fraud  or  damage  to  the  owner  :   so  help  me  God. 


THE  OATH    OF    AN    INSPECTOR    OF    FLOUR. 


I,  A.  B.,  do  swear  (or  affirm)  that  I  will,  without  favor  or  affec- Of  an  inspector 
tion,  malice   or    partiality,   inspect  all   flour  brought   to  me,   and  ° 
which  1  shall  be  required  to  examine,  thai  no  flour  shall  be  passed 
or  branded  by  me  without  my  inspecting  the  same  ;  that  I  will  not 
brand,  or  cause   to  be   branded,  as  passed,  any  cask  or   casks   of 
flour  that  do  not  appear  to  me,  to  the  best   of  my  skill  and  judg- 


438  OATHS.  [Chap.  LXXIX. 

ment,  to  be  sufficiently  clean,  well  ground,  sweet  and  men^bant- 
able  ;  that  I  will  mark  on  all  casks  of  flour  the  degree  thereof, 
according  to  the  directions  of  law  ;  that  I  will  carefully  examine 
the  casks,  in  which  flour  brought  for  inspection  shall  be  contained, 
and  that  I  will  not  pass  or  brand  any  such  casks,  unless  they  be  of 
such  size,  goodness  and  thickness  as  by  law  required  :  so  help  me 
God. 

THE  OATH  OF  INSPECTORS  OF  OTHER  ARTICLES  THAN  TOBACCO  AND  FLOUR. 

Of  inspectors  I?  A-  ^-5  ^^  swear  (or  affirm)  that  I  will  faithfully,  impartially 
of  Other  ar-  and  diligently  execute  the  office  of  inspector,  and  that  I  will  not, 
ibaccoand'flo°ur.  fot- ^^^""^5  ^ff^ction,  prejudice  or  partiality,  brand  for  any  person 
whatsoever  any  barrel  of  beef,  pork,  rice,  tar,  pitch  or  turpentine, 
fish,  butter  or  flaxseed,  or  pass  any  staves  or  heading,  lumber  or 
shingles,  other  than  such  as  are  declared  to  be  lawful,  according  to 
the  best  of  my  skill  and  judgment :  so  help  me  God. 

THE  OATH    OF    AN    ATTORNEY   AT     LAW, 

Of  an  attorney  I^  A.  B.,  do  swear  (or  affirm)  that  I  will  truly  and  honestly 
demean  myself  in  the  practice  of  an  attorney,  according  to  the  best 
of  my  knowledge  and  ability  :  so  help  me  God.  ' 

OATH  OF   A    WITNESS  ON  A   CAPITAL    TRIAL. 

Of  a  Witness         "phe  evidence  you  shall  give  to  the  court  and  iury,  between  the 
trial.  State  and  the  prisoner  at    the    bar,  shall  be  the    truth,  the  whole 

truth,  and  nothing  but  the  truth  :   so  help  you  God. 

OATH  OF    A    WITNESS    ON   A    TRAVERSE. 

Of  a  witness         The  evidence  you  shall  give  to  the  court  and  jury,  touching  this 
on  a  traverse,    iggye  of  traverse,  between  the  State  and  A.  B.,  shall  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth  :  so  help  you  God. 

OATH    OF    A    WITNESS    IN    CIVIL    CASES. 

Of  a  witness  in      The  evidence  you   shall  give  to  the  court  and  jury,  in  this  cause 
civil  cases.        now  on  trial,  wherein  A.  B.  is  plaintiff  and  C.  D.  defendant,  shall 

be  the  truth,  the  whole   truth,  and  nothing  but  the  truth  :  so  help 

you  God. 

OATH  OF  A  WITNESS  TO  PROVE  A  WILL. 

Of  awitnessto      You  swear  that  you  saw  C.  D.   sign,  seal,  publish  and  declare 

prove  a  will.        ,  .  ..  ,         •'  ,  ■       i  •     i  -n  /  , 

this  wTiting  to  be  and  contam  his  last  will  and  testament  ;  that  at 
the  time  thereof  he  was  of  sound  and  disposing  mind  and  memory, 
and  that  he  did  it  freely,  without  compulsion,  to  the  best  of  your 
knowledge  :  so  help  you  God. 

OATH  OF  A  WITNESS  TO  BE  SENT  TO  TH  R  GRAND  JURY. 

Of  a  witness         The  evidence  you  shall  give  to  the  grand  jury,  upon  this  bill 
thJ'grS  jury. °^  indictment  against  A.  B.,  shall  be  the  truth,   the  whole  truth, 
and  nothing  but  the  truth  :  so  help  you  God. 


Chap.  LXXIX.]  oaths.  439 


OATH  OF  A  PETIT  JURY  IN  A  CAPITAL  CASE. 


You  shall  well  and  truly  try  and  true  deliverance  make,  between  Of  a  petit  jury 
the  State  and  the  prisoner  at   the  bar  whom  you   shall   have   in  J,"jl'^''^i^"'^^ 
charge,   and   a  true  verdict  give  according  to  your  evidence  :  so 
help  you  God. 

OATH  OP  A   PETIT  JURY  IN   CRIMINAL  CASES   NOT  CAPITAL. 

You  and  each  of  you  swear  that  you  will  well  and  truly  try  all  P^  ^.  P'r^^V^'^^ 

c  1  •    I        1     11  -^      1      f  1      •  1  •       I         1"  criminal 

issues  01   traverse,    which  shall  come  beiore  you  during  this  day,  cases  not  cap- 
and  true  verdicts  give  according  to  the  evidence  thereon  :  so  help  ^^'^^• 
you  God. 

OATH  OF  A  JURY  IN  CIVIL  CASES. 

The  original  panel  thus  : — You  and  each  of  you  swear  that  youof  ajuryin 
will  well  and  truly  try  all  civil  cases,  which  shall  come  before  you  ^i^^^  <^^*'^'^- 
during  this  term,  and  true  verdicts  give  according  to  the  evidence 
thereon  :  so  help  you  God. 

The  same  oath  to  talesmen  by  using  the  word  "  day"  instead  of 
"  term." 

OATH  OF  PETIT  JURY  LAYING  OFF  DOWER. 

You  and  each  of  you  swear  that  you  will,  without  partiality  and  Pf  a  jury  lay- 
according  to  your  best  judgment,  lay  ofi'and  allot  to  A.  B.,  widow '"^° 
of  C.  D.,  such  dower  in  the  lands  of  said  C.  D.  as  by  law  she  is 
entitled  to  ;  so  help  you  God. 

OATH  OF  A  JURY  TO  ASSESS  DAMAGES  FOR   OVERFLOWING  LAND, 

You  and  each  of  you  swear  that  you  will  well  and  truly  inquire,  ^^  ^  J^jy  *" 

111  -11  ••/-in      assess  damages 

whether  any  damage  hath  been  sustained  by  the  petitioner  A.  Jo.,  for  overflowing 
by  reason  of  the  erection  of  the  mill  complained  of  by  him,  and,  if^^^ds. 
any  damage  hath  been  sustained,  that  you  and  each  of  you  will 
impartially,  according  to  the  best  of  your  judgment  and  ability,  as- 
sess the  amount  which  the  said  A.  B.  ought  annually  to  receive 
from  the  owner,  proprietor  or  tenants  of  said  mill,  on  account 
thereof:   so  help  you  God. 

OATH  OF  THE  FOREMAN  OF   A  GRAND   JURY. 

You,  as  foreman  of  this  s:rand  inquest  for  the  body  of  this  coun-  0/  the  foreman 
ty,  shall  diligently  inquire  and  true  presentment  make  of  all  such  ° 
matters  and  things  as  shall  be  given  you  in  charge  ;  the  State's 
counsel,  your  fellows'  and  your  own  you  shall  keep  secret  ;  you 
shall  present  no  one  for  envy,  hatred  or  malice  ;  neither  shall  you 
leave  any  one  unpresented,  for  fear,  favor  or  aftection,  reward  or  the 
hope  of  reward,  but  you  shall  present  all  things  truly,  as  they  come 
to  your  knowledge,  according  to  the  best  of  your  understanding  : 
so  help  you  God. 

OATH  OF  THE  OTHER  GRAND  JURORS. 

The  same  oath  which  your  foreman  hath  taken  on  his  part,  you  O^'  the. other 
and  each  of  you  shall  well  and  truly  observe  and  keep  on  your*'^"*^  jurois. 
part  :  so  help  you  God.  . 


440  OATHS.  [Chap.  LXXIX. 

OATH   OF   A  CONSTABLE  CHAKGED    WITH  A    JURY. 

Of  a  constable       You  swear  that  you  will  keep  every  person,  sworn  of  this  iury, 

charffed  with  a  ,.  •'.  ,    ^  •  ■,  -i  J     J  ^ 

jury.  together  in  some   private  and   convenient  place,  without  meat  or 

drink  (water  excepted).  You  shall  not  suffer  any  person  to  speak 
to  them,  neither  shall  you  speak  to  them  yourself,  unless  it  be  to 
ask  them  whether  they  are  agreed  in  their  verdict,  but  with  leave 
of  the  court  :  so  help  you  God. 

OATH    OF  A  CONSTABLE  TO  ATTEND  THE  GKAND  JURY. 

to^attend\'he^^       ^°"  swear  that  you  will  faithfully  carry  all  papers  sent  from  the 
grand  jury.       court  to  the  grand  jury,  or  from  the  grand  jury  to  the  court,  with- 
out alteration  or  erasement  :  so  help  you  God. 

OATH  OF    AN   EXECUTOR. 

Of  an  executor.  You  swear  that  you  believe  this  writing  to  be  and  contain  the 
last  will  and  testament  of  A.  B.,  deceased,  and  that  you  will  well 
and  truly  execute  the  same,  by  first  paying  his  debts  and  then  his 
legacies,  as  far  as  the  said  estate  shall  extend,  or  the  law  shall  charge 
you  ;  and  that  you  will  well  and  faithfully  execute  the  office  of  an 
executor,  agreeably  to  the  trust  and  confidence  reposed  in  you, 
and  agreeably  to  law  :  so  help  you  Goli« 


THE  OATH  OF    AN  ADMINISTRATOR. 


Of  an  admin- 
istrator. 


You  swear  that  you  believe  A.  B.  died  without  leaving  any  last 
will  and  testament  ;  that  you  will  well  and  truly  administer  all  and 
singular  the  goods  and  chattels,  rights  and  credits  of  the  said  A. 
B.,  and  a  true  and  perfect  inventory  thereof  return  into  this  court 
at  its  next  term,  and  that  all  other  duties,  appertaining  to  the 
charge  reposed  in  you,  you  will  well  and  truly  perform,  according 
to  law,  and  with  your  best  skill  and  ability  :  so  help  you  God. 

OATH    OF    COMMISSIONERS    DIVIDING    AND     ALLOTTING    REAL     ESTATE. 

Of  commis-  You   and  each  of  you  swear,  that,  in   the  partition   of  the  real 

sion6rs  cliviciinsf  . 

and  allotting     estate  now  about  to  be  made  by  you,  you  will  do  equal  and  impar- 
real  estate.       j-;^]  justice  among  the  several  claimants,  according  to  their  several 
rights,  and  agreeably  to  law  :  so  help  you  God. 

OATH    OF  COMailSSIONERS     ALLOTTING  A   YEAr'S    PROVISION. 

Of  comniis-  You  and  each  of  you  swear  that  you  will  lay  off  and  allot  to  the 

sionsrs  £illot-  1/  •/ 

ting  a  year's      petitioner,  a  year's  provision  for  herself  and  family,  according  to 
provision.         jg^y^  gjjj  \Mi\h  your  best  skill  and  ability  :  so  help  you  God. 

OATH  OF  VALUERS    OF    STRAYS. 

stra^^s^"^"^^  °^  ^^^  swear  that  you  will  well  and  truly  view  and  appraise  the 
stray,  in  the  summons  to  you  directed,  without  favor  or  partiality, 
according  to  your  skill  and  abihty  :  so  help  you  God. 

BOOK    DEBT    OATH. 

Book  debt  You  swear  that  the  matter  in  dispute  is  a  book  account,  and  that 

you  have  no  means  to  prove  the   delivery  of  such  articles,  as  you 
propose  to  prove  by  your  own  oath,  or  any  of  them,  but  by  your- 


Chap.  LXXX.]  offices.  441 

(  ■  _  ■ 

||     self,  and  you  further  swear  that  the  account  rendered  by  you  is  just 
I       and  true  ;  and  that  you  have  given  all  just   credits  :  so  help  you 
God. 

BOOK  DEBT   OATH  FOU  AN  EXECUTOR  OS  ADMINISTRATOR. 

You,  as   executor   or  administrator  of  A.  B.,  swear  that  you  Book  debt 
verily  believe  this  account  to  be  just  and  true,  and  that  there  are  °gyfQj.°py^£[^(j.^^' 
no   witnesses  to  your  knowledge,  capable  of  proving  the  delivery  ministrator. 
of  the  articles  therein   charged,  and  that  you  found  the  book  or 
account  so  stated,  and  do  not  know  of  any  other  or  further  credit 
to  be  given  than  what  is  therein  given  :  so  help  you  God. 

7.   In  all  cases  where  any  civil  officer,  in  the  discharge  of  his  Deputies  to  ad- 
duties,  is  permitted  by  the  law  to  administer  an  oath,  the  deputy  of  ^{^"'^g^^g^^hefr 
such  officer,  when  discharging  such  duties,  shall  have  authority  to  principals  are 
administer  it,  provided  he  is  a  sworn   officer  ;  and  the   oath  thus  do'so."^^*^  ^° 
administered  by  the  deputy,  shall  be  as  obligatory  as  if  administered 
by  the  principal  officer,  and  shall  be  attended  with  the  same  penal- 
ties in  case  of  false  swearing. 

7.  1836,  c.  27,  s.  2. 


Note.  —  References  to  Adjudged  Cases. 
Sect.  2.  State  vs.  Whisenhurst,  2  Hawks,  458. 


CHAPTER  80. 

OFFICES, 

AN  ACT  CONCERNING  OFFICES. 


Section 

the  peace   and   ofBcers  of  the  mi- 
litia. 
2.  Contracts  for  the  sale  of  offices  void. 


Section 

I.  Penalty  for  holding  an  office  both 
under  this  State  and  the  United 
States— Proviso   as   to  justices  of 

1.   Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby   enacted  by  the    authority  of  the  same, 
That  if  any  person,    holding  any  office  or    place  of  profit  or  trust  p^^^j^ 
under  the  United  States  or  any  department  thereof,  or  under  this  holdln|an'"of- 
State  or  any   other  state   or  government,  or  acting  as    senator  or  f^.®  ^°^^  ""'i^' 

..•        •,]  ^iTT-i/-,  111  this  State  and 

representative  in  the  congress  of  the  United  States,  shall  presume  the  United 
to  hold  or    exercise  any   other  office  or    place  of  trust   or  profit,  ^^^'es. 
under  the  authority  of  this  State,  or  to  take  a  seat  in  either  house 
of  the  General  Assembly  of  this  State,  or   if  any  person,  holding 

1.  1790,  c.  319.— 1792,  c.  366.— 1793,  c.  393.-1796,  c.  450.— 1811,  c  811, 

VOL.  I.  56  i 

*  1 


442 


OFFICIAL    BONDS.  [ChAP.-^  LXXXI. 


any  office  or  place  of  profit  or  trust,  under  the  authority  of  this 
State,  or  accepting  a  seat  in  the  General  Assembly  of  this  State, 
shall  presume  to  hold  or  exercise  any  office  of  profit  or  trust  under 
the  United  States  or  any  department  thereof,  or  any  other  state  or 
government,  or  shall  act  as  senator  or  representative  in  the  congress 
of  the  United  States,  without  resigning  his  previous  office  or  place 
of  profit  or  trust,  he  shall,  for  every  such  offence,  forfeit  and  pay 
the  sum  of  two  hundred  dollars,  to  be  sued  for  and  recovered  in 
the  name  of  the  State,  one  half  to  the  use  of  the  State,  and  the 
Proviso  as  to  Other  half  to  the  use  of  the  person  suing  for  the  same  ;  Provided^ 
justices  of  the  ^]^gj.  nothing  herein  contained  shall  extend  to  officers  in  the  militia 

peace  and  mill-         ,       .  /-    i 

tia  officers.       or  justices  ol  the  peace. 

Contracts  for  2.  All  bargains,  sales,  promises,  bonds,  agreements,  covenants 
and  assurances,  made  or  given  for  the  purchase  or  sale  of  any 
office  whatsoever,  the  sale  of  which  is  or  shall  be  prohibited  by 
law,  shall  be  void  to  and  against  him  and  them,  by  whom  any  such 
bargain,  sale,  bond,  promise,  covenant  or  assurance  shall  be  had 
or  made. 


the  sale  of  of- 
fices void 


2.  5  and  6  Edw.  6,  c.  1 6,  s.  3. 


Note.  —  References  to  Adjudged  Cases. 
Sect.  2.  Haralson  vs.  Dickens,  2  Car.  Rep.  66. 


CHAPTER  81. 


OFFICIAL.  BONDS 


AN  ACT  PRESCRIBING   A   MODE   OF  RECOVERY  AGAINST  CERTAIN 
OFFICERS  THEREIN  MENTIONED  AND  THEIR  SECURITIES. 


Section 

1 .  Suits  on  the  official  bonds  of  clerks, 

&c.  maybe  brought  by  the  party 
injured. 

2.  Declaration    must    shew  in  whose 

behalf  the  suit  is  brought — Person 
injured  may  at  his  election  sue  the 
officer  in  an  action  on  the  case. 

3.  Remedy  before  a  justice  of  the  peace 

against  officers  who  neglect  to  pay 
over  moneys  received  within  the 
jurisdiction  of  a  justice. 

4.  Summary  remedy  in  court   against 


Section 

officers  failing  to  pay  moneys  re- 
ceived. 
6.  Twelve  per  cent,  damages  allowed  on 
money  unlawfully  detained  by  an 
officer. 
6.  Clerks  of  the  county  court  to  record 
the  names  of  the  Justices  present 
when  appointments  are  made — 
Such  justices,  failing  to  take  bond, 
are  to  be  held  securities  themselves 
— Copy  of  the  record  to  be  evidence 
against  them. 


;sr42.  3 


^/f    /)D-    ~   6 1.   .     /j\ 


Chap.  LXXXI.]     official  bonds.  443 

1.  Be   it  enacted   by  the    General  Assembly  of  the    State  of 
JYorth  Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same. 

That  it  shall  and  may  be  lawful  for  any  person  or  persons,  injured  su^tg  „„  the  of- 
by  the  neglect,  misconduct  or  misbehavior  in    office  of  any  of  the  ficial  bonds  of 
clerks  of  the  superior  or  county  courts,  clerks  and  masters  in  equity,  '^^y.  ^^  b?ou°-ht 
registers,    entry  takers,    surveyors,  sheriffs,   constables,  or  other  by  the  party  in- 
officers,  to  institute  a  suit  or  suits  against  the  said  officers  or  any  ^^^^ 
of  them,  and  their  securities,  upon  their  respective  bonds  for  the 
due  performance  of  their  duties  in  office  in  the  name  of  the  State, 
to  whom  the  said  bonds  are  made  payable,  without  any  assignment 
thereon. 

2.  The  person  or  persons,  so  iniured  and  bringing  suit  as  afore-  Declaration 

•  1       1     11  1  1  1  1111  1  •  1     1  •  must  shew  in 

said,  shall  be  and  are  hereby  declared  to  be  entitled  to  receive  to  whose  behalf 
his,  her  or  their  own  use,  all  moneys  so  recovered  :   Provided,  the  J^^  ^^}^  '^ 

..,,•',..  .  c  •1111  Drought. 

person  or  persons,  so   injured  and  bringing  suit   as  atoresaid,  shall 

state  in  the  declaration,  as  he,  she,  or  they  are    hereby  authorized 

to  do,  matter  of  inducement  sufficient  to  shew  the  court,  (in  which 

suit  or    suits  may  be  brought,)  at  whose  instance,  and    in  whose 

behalf  the  same  is  or   are    brought,      t^nd   provided  further,  that  may "aVhi's"^^ 

nothing  herein  contained    shall   prevent    any  person   or    persons,  election  sue 

injured,  as  aforesaid,  by  any  of  the  officers  aforesaid,  from  bring-  an^ction'^o^n 

ing,  at  his,  her  or  their  election,  an  action  on  the  case  against  such  the  case. 

officer  or  officers,  and   recovering    damages  for   his,  her,  or  their 

injury  as  aforesaid. 

3.  When  any  sheriff,  clerk,  coroner  or  constable,  within  the  Remedy  before 
several  counties  in  this  State,  shall  or  may  have  received  any  mo-  peace 'against  ^ 
ney,  by  virtue  of  his  office  or  appointment,  and  shall  fail  to  pay  the  oncers  who 

/    .1  *%i    J    *  •         •*    ♦!  J    •     neglect  to  pay 

same  to  the  person  or  persons  entitled   to  receive  it,  then  and  in  over  moneys 
that  case,  it  shall  and  may  be  lawful  for  a  iustice  of  the  peace  to  received  within 

^  1  -"^  11'  V  J     •         -J  ^  c      the  jurisdiction 

issue  a  warrant  against  him  and  his  securities  and  give  judgment  tor  of  a  justice, 
any  sum,  not  exceeding  the  jurisdiction  of  a  justice  of  the  peace, 
together  with  costs,  and  to  award  execution  thereon,  subject  nev- 
ertheless to  the  right  of  appeal,  and  when  it  shall  so  happen  that 
any  person's  appointment,  as  sheriff',  clerk,  coroner  or  constable, 
shall  expire,  or  he  be  removed  from  office,  before  such  warrant  is- 
sues, the  same  remedy  and  proceedings  may  be  had  against  him,  as 
if  he  actually  were  in  office. 

4.  Whenever  a  sheriff,  coroner,  constable,  clerk  of  a  court  of  Summary  rem- 
law,  or  clerk  and  master  in  equity,  has  collected  or  received,  or  edy.iu  court 

.  •  Et^^Eiinst  oiiiccrs 

shall  have  collected  or  received,  any  money,  by  virtue  or  under  failing  to  pay 
color  of  his  office,  and  on  demand  shall  fail  to  pay  the  same  to  the  m?neys  re- 
person  entitled  to  require  the  payment  thereof,  it  shall  be  lawful  for 
the  person  thereby  aggrieved  to  move  for  judgment,  in  any  court 
having  competent  jurisdiction,  against  such  sheriff,  coroner,  con- 
stable, clerk,  or  clerk  and  master,  as  the  case  may  be,  and  against 
any  or  all  of  his  securities,  and  it  shall  be  the  duty  of  such  court  to 
try  the  same  and  to  render  judgment  accordingly,  at  the  term  when 

1.  1793,c.3S4,s.  I.— 1833,  c  17.— lS25,c.  1276-. 

2.  1793,  c.  334,  s.  2  and  3. 

3.  1793,  c.  3S4,  s.  5.-1S00,  c.  550.— 1802,  c.  619. 

4.  1815,  c.  1002,  s.  1. 


444 


OFFICIAL    BONDS.  [ChAP.  LXXXI. 


Twelve  per 
cent,  damages 
allowed  on 
money  unlaw- 
fully detained 
by  an  officer. 


Clerks  of  the 
county  court 
to  record  the 
names  of  the 
justices  present 
when  appoint- 
ments are 
made. 


Such  justices, 
failing  to  take 
bond,  are  to  be 
held  securities 
themselves 


Copy  of  the 
record  to  be  ev- 
idence against 
them. 


the  motion  shall  be  made  :  Provided,  ten  days'  notice  in  writing,  of 
such  intended  motion  shall  have  been  previously  given,  to  the  per- 
son or  persons  against  whom  judgment  is  prayed. 

5.  Whenever  money,  received  as  aforesaid,  shall  be  unlawfully 
detained  by  a  sheriff,  coroner,  constable,  clerk  of  a  court  of  law,  or 
clerk  and  master  in  equity,  from  any  person  entitled  to  require  the 
payment  thereof,  it  shall  be  lawful  for  the  person,  thereby  aggriev- 
ed, pursuing  his  remedy  against  such  delinquent  or  his  representa- 
tives, or  his  securities,  whether  suing  in  the  mode  by  this  act  pre- 
scribed or  in  any  other  way  known  to  the  law,  to  recover,  over  and 
above  the  sum  detained,  damages  at  the  rate  of  twelve  per  centum 
per  annum,  from  the  time  of  such  detention  until  payment,  and 
such  damages  shall  form  a  part  of  the  judgment,  to  be  rendered  in 
his  behalf  by  the  court  or  the  magistrate,  before  whom  his  action 
may  be  brought :  Provided,  that  such  officer  shall  not  be  hable  to 
the  damages  hereby  given,  if  he  shall  offer  payment  in  any  of  the 
notes  of  the  banks  of  this  State,  unless  the  creditor  shall  have 
given  notice  to  such  officer  not  to  receive  any  moneys  but  gold  or 
silver. 

6.  It  shall  be  the  indispensable  duty  of  the  clerks  of  the  county 
court,  and  they  and  every  of  them  are  hereby  strictly  required,  to 
make  a  record  of,  and  enter  at  large  on  their  dockets,  the  names  of 
those  justices  of  the  peace,  who  shall  be  in  court  or  on  the  bench, 
at  the  time  of  the  qualification  of  their  sheriffs,  clerks,  entry  takers 
and  registers,  and  if  the  said  clerk  shall  fail  or  neglect  to  make  such 
entry  and  record  as  aforesaid,  and  be  thereof  convicted  in  any  su- 
perior court,  he  shall  forfeit  his  office  as  a  punishment  for  such 
failure  and  neglect  as  aforesaid  ;  and  should  it  at  any  time  hereafter 
so  happen,  that  any  of  the  officers  above  named  shall  be  permitted 
to  officiate  as  such,  and  to  discharge  any  of  the  duties  of  their  re- 
spective appointments,  without  having  first  qualified  and  given  bond 
with  security,  for  the  due  and  faithful  performance  of  them,  as  is 
required  bylaw,  the  justices  of  the  peace,  who  sat  on  the  bench  or 
were  in  court  at  the  time  of  the  appointment  of  the  officer  or  offi- 
cers so  officiating  and  acting  as  aforesaid,  in  virtue  and  under  color 
of  his  appointment,  but  without  qualifying  or  giving  bond,  shall  be 
considered  bound,  to  all  intents  and  purposes,  and  they  and  every 
of  them  are  hereby  declared  to  be  bound,  as  the  securities  of  the 
sheriff  or  other  officer  or  officers  thus  acting  and  availing  himself  of 
such  his  appointment,  without  having  first  given  bond  for  the  faith- 
ful performance  of  his  duty  in  office,  in  the  same  degree  and  in  the 
same  manner  as  though  they  had  been  formally  bound  by  entering 
into  and  executing  bonds  with  and  as  the  securities  of  such  officers  ; 
and  they  may  and  shall  be  proceeded  against  accordingly,  by  the 
proper  officers  of  the  State,  and  all  other  persons  concerned  ;  and 
in  all  suits  and  proceedings  under  this  section,  a  copy  of  the  record 
of  the  court,  attested  by  the  clerk,  is  hereby  declared  to  be  legal 
and  sufficient  evidence,  and  shall  be  admitted  as  such,  and  judg- 
ment shall  be  had  thereon  accordingly. 


5.  1819,  c.  1002,  s.  2. 

6,  1790,  c.  327.— 1809,  c.  777. 


Chap.  LXXXIL]         ordinaries. 

Note. — References  to  Adjudged  Cases. 

Sect.  4.  State  bank  vs.  Davenport,  2  Dev.  and  Bat. 

Sect.  6.   Rawles  vs.  Deans,  4  Hawks,  299.     Governor  vs.  M'Affee,  2  Dev.  15. 
bank  vs.  Davenport,  2  Dev.  and  Bat. 


445 


State 


CHAPTER  82. 


ORDINARIES 


AN  ACT  FOR  REGULATING  ORDINARIES. 


Section 

1 .  Retailers  of  liquors  to  sell  by  sealed 

measures. 

2.  How  a  license  to  keep  an  ordinary 

may  be  obtained — Bond  to  be  given. 

3.  How  license  to   be  issued,  and  how 

long  to  continue  in  force. 

4.  Justices  to  establish  rates  of  cliarges 

— Duty  of  ordinary  keepers. 


Section 

5.  No  ordinary   keeper  to   give  credit 

for    liquors    beyond   ten   dollars — 
Proviso. 

6.  Penalty  on  ordinary  keepers  for  en- 

tertaining slaves  or  sailors. 

7.  Persons  wishing  to  obtain  license  to 

sell  spirituous  liquors,  how  to  pro- 
ceed. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JSTorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

That  all  persons,  hereafter  retailing  liquors,  shall  sell  the  same  by  Retailers  of 
sealed  measures,  or  such  other  measures  as  shall  at  least  contain  |j*^"°al;ed  ^^^^ 
the  full  quantity  pretended  to  be  sold.  measures. 

2.  Any  person,  by  applying  to  the  court  of  the  county  in  which  How  a  license 
such  person  dwells,  and  praying  a  license  to  keep  an  ordinary,  may,  djnarymay°be 
at  the  discretion  of  such  court,  be  ordered  to  have  a  license  for  the  obtained. 
purpose  aforesaid,  unless  it  shall  appear  to  the  said  court  that  the 

person  so  applying  is  a  person  of  gross  immorality,  or  of  such  poor 
circumstances  and  slender  credit,  that  they  think  him  or  her  not 
able  to  comply  with  the  intention  of  this  act.  And  on  granting 
such  hcense,  the  person  who  applies  for  the  same,  shall  produce 
one  or  more  securities  to  the  said  court,  to  be  by  them  approved, 
who  shall,  before  the  license  be  made  out,  join  with  him  or  her  in 
a  bond  of  the  following  tenor,  to  wit  : 

"  Know  all  men  by  these  presents,  that  we,  A.  B.  and  C.  D.,  Bond  to  be 
are  held  and  firmly  bound  to  the  State  of  North  Carolina,  in  the 
sum  of  two  hundred  dollars,  to  be  paid  to  the  State,  to  which  pay- 
ment well  and  truly  to  be  made,  we  bind  ourselves  and  every  of  us, 
our  and  every  of  our  heirs,  executors  and  administrators,  jointly 
and  severally  firmly  by  these  presents,  sealed  with  our  seals  and 
dated  the  day  of 


given. 


1.  1793,  C.  501,  s.  1.— 1741, 

2.  I79S,  c.  501,  s.  2. 


c.  32. 


446  ORDINARIES.         [Chap.  LXXXII. 

"  The  condition  of  the  above  obligation  is  such  that  whereas  the 
above  bounden  A.  B.  hath  obtained  a  Hcense  to  keep  an  ordinary 
at  ;  if  therefore  the  said  A.  B.  doth  constantly  find  and  pro- 

vide, in  his  or  her  said  ordinary,  good  and  wholesome  diet  and 
lodging  for  travellers,  and  stable,  fodder,  corn  and  pasturage  for 
their  horses,  for  and  diwing  the  term  of  one  year  from  the  day 
of  ,  then  this  obligation  to  be  void,   otherwise  to  remain  in 

full  force." 

And  in  case  of  breach  of,  or  not  complying  with  the  condition 

of  the  said  bond,  it  shall  and  may  be  lawful  for  any  person,  in  the 

name  of  the   State,  to  sue  for  and  recover  the  penalty  of  the  said 

bond,  one  half  thereof  to  his  use,  and  the  other  half  to  the  use  of 

the  State. 

How  license  to      3.   When  such  bond  shall  have  been  given,  the  clerk  of  the 

how  long' to      court  shall  prepare  a  license  and  sign  the  same,  which  license  shall 

continue  in       continue  in  force  one  year  and  no  longer  ;  and  the  said  clerk  shall 

receive  eighty  cents  in  full  for  his  fees  and  furnishing  a  copy  of  the 

tavern  rates  ;  and  every  person  obtaining  such  license  shall  pay  to 

the  sherift'  of  his  or  her  county,  at  the  time  of  paying  public  taxes, 

four  dollars  as  a  tax  to  the  State. 

Justices  to  es-        4^   'Yhe  justices  of  each  county  shall,  once  a  year  or  oftener  if 

tablish  rates  ot  \       n  1        1     1  1      r-  1       /•  1  r    ^ 

charges.  necessary,  at  the  first  court  to  be  held  alter  the  first  day  01  Janu- 

ary in  each  year,  rate  the  prices  of  liquor,  diet,  lodging,  fodder, 
corn,   provender  and   pasturage,   to  be  taken  by  ordinary  keep- 
ers in  their  respective  counties  ;  and  every  ordinary  keeper  shall, 
Duty  of  or-      within  thirty  days  after  such  rates  are  settled,  cause  the  same  to  be 
dinary  keepers,  set  up  in  the  common  entertaining  room  of  such  ordinary,   and 
there  kept  until  the  rates  are  again  altered  ;  and  on  failing  so  to  do, 
shall  forfeit  and  pay  the  sum  of  forty  dollars,   to  the  use  of  the 
county  wherein  such  offence  may  happen,  to  be  recovered  before 
any  justice  of  the  peace  of  said  county,  subject  nevertheless  to  an 
appeal  as  in  other  warrants. 
No  ordinary  ^-  ^^  Ordinary  keeper  shall  sell  on   credit,  liquors  to  any  per- 

keepertogive  son  to  a  greater  amount  than  ten  dollars,  unless  the  person  so 
liquors  beyond  Credited,  sign  a  book  or  note  in  the  presence  of  one  or  more  wit- 
ten  dollars.  nesses,  in  acknowledgment  of  the  said  debt,  under  the  penalty  of 
losing  the  money  so  credited  ;  and  in  any  action  brought  for  recov- 
ery of  such  debt,  the  general  issue  may  be  pleaded  and  this  act 
Proviso.  given  in  evidence  :   Provided  nevertheless,  that  nothing  in  this  sec- 

tion contained  shall  be  construed,  deemed  or  taken,  to  prohibit  or 
restrain  any  person  to  sell,  by  retail,  brandy  or  other  distilled  spir- 
its, the  production  of  his  own  farm,  by  the  quart  or  a  greater 
quantity. 
Penalty  on  or-  6.  If  any  ordinary  keeper  shall  entertain  slaves  against  the  will 
dinary  keepers  gf  their  owncrs,  or  common  sailors  asrainst   the  direction   of  the 

lor  entertaining  »  ,  1  •    1        1  11  i-  1 

slaves  or  masters  01  vessels,  to  which  they   belong,  every   ordinary  keeper, 

sailors.  gQ  offending,  shall  and  may,  by  order  of  the   justice  before  whom 

such  offence  shall  be  proved,  be   from  thenceforth  suspended  and 

8.  1798,  c.  501,  s.  3. 

4.  1798,  c  501,  s.  5. 

.5  1798,  C.  501,  S'.  6. 

6.  179S,  C.  501,  S.4. 


Chap.  LXXXIIL]         overseers.  447 

disabled  from  keeping  an  ordinary,  as  if  he  or  she  had  never  obtained 
a  license  for  that  purpose  ;  and  shall  be  further  subject  to  a  fine  of 
ten  dollars,  to  the  use  of  the  party  suing  for  the  same,  to  be  recov- 
ered before  any  justice  of  the  peace,  subject,  nevertheless,  to  an 
appeal  to  court,  as  in  cases  of  other  warrants,  by  either  party  who 
may  think  himself  aggrieved  by  the  determination  of  such  justice. 

7.   Every  person,  wishing  to  retail  spirituous  liquors  by  the  small  ?^„^^^"^^^^gYn 
measure,  viz  :  by  a  measure  less  than  a  quart,  shall  apply   to   the  licenses  to  re- 
county  court  of  pleas  and  quarter  sessions,  in  which  he    resides,  ^quors'^how^to 
and  obtain  an  order  therefor,  which    order  shall  be  granted  by  the  proceed. 
said  court,  seven  justices  being  on  the  bench,  only  to  such   free 
white  persons  as  shall  satisfactorily  shew   to   the  court  their  good 
moral  character,  by  at  least  two  witnesses  of  known  respectability, 
to  whom  the  character  of  the  applicant  has  been  known  for  at  least 
one  year  :  and,   upon  the    same  being  granted   as   aforesaid,  the 
clerk  shall  give  to  the  party,  so  applying  for  a  license,  a  certificate 
thereof,  upon  which  he  may  obtain    a  license,  in  the  manner  pro- 
vided in  the  act  concerning  the  public  revenue  :   Provided,  that  no 
person,  obtaining  a  license,  shall  be   authorized  to  retail  spirituous 
liquors  at  more  than  one  place  in  said  county,  for  which  said  license 
may  be  granted  :  And  provided  further,  that  such   license  shall 
continue  in  force  only  for  one  year. 

7.   182S,  c.  1272,  s.  2  and  3.— 1828,  c.  10. 


Note, — Refrences   to  Adjudged  Cases. 


Sect.  4,  State  vs.  Wynne,  1  Hawks,  451. 
Sect.  5.  Thomcgeux  vs.  Bell,  Martin,  44. 


CHAPTER  83. 

OTERSEERS. 

AN  ACT  CONCERNING  OVERSEERS. 

Be  it  enacted  by  the  General  Jlssemhly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  if  any  person  shall    hire  or  contract   himself  to  serve  as  an  Overseer  leav- 

•A  1  r  ^1  1  VI  ing  his  em- 

overseer,  eitlier  upon  wages  or  share   oi  the   produce,  with    any  piSyer,  to  for- 
person  or  planter  whatsoever,  and  shall  absent  himself  or  depart  ^^i^  ^^^  wages. 
from  the  service  of  his  employer,  before  the  time  mentioned  in 
his   agreement    or    contract  shall  be  expired,  he  shall,  for    such 
offence,  forfeit  his  right  and  title  to  his  wages  or  share  of  the  pro- 
duce. 

1741,  C.  35,  s.  22. 


Note. — References  to  Adjudged  Cases. 
Steed  vs.  McRae,  1  Dev.  and  Bat.  435. 


448 


OYSTERS, 


[Chap.  LXXXIV. 


CHAPTER  84. 


OYSTERS. 


AN  ACT  TO  PREVENT  THE  DESTRUCTION  OP  OYSTERS. 


Penalty  for 
transporting 
oysters  out  of 
the  State. 


Offenders  to 
give  bail. 


Duty  of  mag- 
istrates in  ap- 
prehending of- 
fenders. 


Section 

1.  Penalty  for  transporting  oysters  out 

of  the  State. 

2.  OiFenders  to  give  bail. 


Section 

3.  Duty  of  magistrates  in  apprehending 

offenders. 

4.  Penalty  for  using  any  instrument  ex-- 

cept  tongs,  in  taking  oysters. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of 
JYorth  Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the 
same,  That  it  shall  not  be  lawful  for  any  person  or  persons  to  carry 
oysters  out  of  this  State,  and  if  any  master  or  skipper  of  a  vessel 
shall  hereafter  transport  any  quantity  of  oysters,  taken  from  any 
place  within  this  State,  to  any  place  beyond  the  limits  thereof, 
every  such  master  or  skipper  shall  forfeit  and  pay  two  hundred 
dollars  for  every  such  offence,  to  be  recovered  in  any  court  of 
record,  by  any  person  who  will  sue  for  the  same,  one  half  to  the 
use  of  the  informer,  and  the  other  half  to  the  poor  of  the  county. 

2.  In  all  actions  which  shall  be  brought  against  any  master  or 
skipper  of  any  vessel,  in  pursuance  of  this  act,  such  master  or 
skipper  shall  be  required  to  give  appearance  bail  :  Provided,  the 
plaintiff  shall  make  affidavit,  before  a  magistrate,  of  the  cause  of 
such  action,  to  be  transmitted  to  the  clerk  of  the  court,  wherein 
the  suit  shall  be  prosecuted. 

3.  Whenever  any  person  shall  make  affidavit  that  he  has  good 
cause  to  believe,  that  any  master  or  skipper  of  a  vessel  has  received 
on  board  such  vessel  oysters,  for  the  purpose  of  transporting  them 
out  of  this  State,  contrary  to  the  provisions  of  this  act,  it  shall  be 
lawful  for  the  magistrate,  before  whom  such  affidavit  shall  be  made, 
and  within  whose  jurisdiction  such  vessel  may  be,  to  issue  his  war- 
rant for  the  immediate  apprehension  of  such  master  or  skipper,  and 
for  bringing  him  before  such  magistrate,  or  before  any  other  magis- 
trate of  the  same  county,  and  the  justice,  before  whom  such  per- 
son shall  be  brought,  upon  hearing  such  evidence  as  may  be 
adduced  before  him,  if  there  be  no  good  cause  to  believe  that  a 
violation  of  the  provisions  of  this  act  is  intended,  shall  discharge 
from  further  custody  such  master  or  skipper,  but  if  it  shall  appear 
to  such  magistrate  that  there  is  good  cause  to  believe,  that  a  viola- 
tion of  the  provisions  of  this  act  is  intended  by  such  master  or 
skipper,  then  it  shall  be   the   duty  of  such  magistrate  to  commit 


1.  182-2,  c.  1134,  s.  1. 

2.  1822,  c.  1134,  s.  2 

3.  1822,  c.  1134,  s.  3. 


Chap.  LXXXV.]  partition. 


449 


such  master  or  skipper  to  the  jail  of  his  county,  unless  he  shall 
enter  into  a  recognizance  with  sufficient  security,  in  a  sum  not 
exceeding  two  hundred  dollars,  upon  condition  to  appear  at  the 
next  court  to  be  held  for  such  county,  and  to  abide  and  perform 
such  order  or  orders  as  shall  be  made  by  such  court. 

4.   If  any  person  shall  use   any  drag,  scoop,  or  rake,  or  other  penalty  for 
instrument  except  tongs,  such  as  have  been  generally  used  for  the  using  any  m- 

c  /.  °  .  ,  .       ,  r    1  •      o(.   ^  struraent  ex- 

purpose  ot  catching  oysters,  withm  the  waters  oi  this  fetate,  every  cent  tongs  in 

person  so  offending,  and  being  thereof  convicted  before  a  magis-  taking  oysters, 
trate  of  either  of  the  counties  adjoining  the  water  course,  in  which 
the  offence  has  been  committed,  shall  forthwith  pay,  if  a  free  man, 
the  sum  of  twenty  dollars,  and  if  a  slave,  he,  she  or  they  shall 
receive,  on  his  or  her  bare  back,  so  many  stripes  as  such  magis- 
trate shall  direct,  not  exceeding  twenty,  or  be  committed  by  such 
magistrate  to  the  public  jail  of  the  county,  there  to  remain  without 
bail,  for  thirty  days,  unless  such  fine  of  twenty  dollars  be  sooner 
discharged,  one  half  of  which  fine  shall  go  the  county,  and  the 
other  half  to  the  use  of  the  informer  :  Provided^  that  nothing  in 
this  act  shall  be  so  construed,  as  to  prevent  the  carrying  of  oysters 
into  the  North  and  Northwest  rivers,  having  their  source  in  the 
State  of  Virginia,  as  now  practised,  nor  the  exportation  of  pickled 
oysters  in  vessels  to  the  West  Indies  :  Provided,  that  no  one  ves- 
sel shall  carry  more  than  sixty  gallons  at  one  time. 

4.   1822,  c.  1134,  s.  4. 


CHAPTER  85. 


PARTITION. 


AN  ACT  PRESCRIBING  A  MODE  BY  WHICH  PARTITION  OF  REAL 
AND  PERSONAL  ESTATES  MAY  BE  MADE  AMONG  TENANTS  IN 
COMMON,  AND  IN  WHAT  CASES  SUCH  ESTATES  MAY  BE  SOLD  FOR 
A  DIVISION. 


Section 

1 .  One  or  more  tenants  in  common  may 

file  a  petition  in  the  superior  or  coun- 
ty court  for  a  division  of  real  estate 
— Proceedings  on  such  petition. 

2.  The  petition  to  be  filed  in  the  supe- 

rior court  when  the  land  lies  in  dif- 
ferent counties — If  one  co-tenant  is 
absent  from  the  State,  advertise- 
ment must  be  made. 

3.  Commissioners  to  divide  the  land  as 

equally  as  possible— Sums  charged 

VOL.   I.  57 


Section 

on  dividends  of  minors  not  to  be 
paid  until  they  come  of  age. 

4.  Sums     charged    to    bear   interest — 

Guardian  of  minor  shall  pay  when 
he  has  assets. 

5.  Sheriff"  shall  summon  commissioners 

and  swear  them. 

6.  Pay  of  commissioners — Court  to  or- 

der by  whom  the  costs  of  the  peti- 
tion shall  be  paid. 

7.  Court  of  equity  may  order  a  sale  of 


450 


PARTITION. 


[Chap.  LXXXV. 


Section 
real 


9. 

10. 

11. 


12. 


13. 


14. 


estate  for  division,  when  it 
cannot  be  divided  otherwise  without 
prejudice  to  the  parties. 

Court  of  equity  may  order  a  sale  of 
real  estate  required  for  public  pur- 
poses, upon  the  petition  of  the  ten- 
ants in  common. 

Where  the  sale  shall  be  made. 

The  deed  of  the  clerk  and  master 
shall  convey  the  title. 

Where  there  is  dower  on  the  land  the 
court  may  decree  a  sale,  and  appor- 
tion the  dower  interest. 

Proceedings  when  lands  descended 
or  devised  lie  partly  in  this  State 
and  partly  in  another  state. 

The  court  may  decree  a  partition  of 
such  lands. 

Court  shall  appoint  commissioners — 
Duty    of   such    commissioners    in 


15. 


16. 


Section 

making  a  partition  of  such  lands — 

What  final  decree  the  court  may 

make. 
When  a  decree  for  partition  in  anoth- 
er State  may  be  enforced   in  this 

State. 
Court  to  judge  whether  another  state 

has  passed  a  law  in  conformity  to 

this. 
17.  Time  allowed  for^emes  coz>erf,  infants, 

&c. 
How  a  partition  of  personal  property 

among  tenants  in  common  may  be 

made. 
When    personal    property    may    be 

sold  for  a  division. 

20.  Court  may  appoint  a  guardian  to  in- 

fants, &c. 

21.  Compensation   of    the    freeholders, 
clerk  or  other  commissioners. 


18. 


19. 


1.   Be  it  enacted  by  the  General  Assembly  of  the  State  of  JS'orth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
One  or  more     That  the  judges  of  the  superior  courts  of  law  and  equity  and  the 
tenants  in  com- justices  of  the  couiity  courts  of  pleas  and  quarter  sessions  be,  and 
petitioif  in  the^  ^^^Y  ^^®  hereby  required  and  empowered,  on  petition  of  one  or  more 
superior  or       persons,  claiming  the  real  estate  of  any  intestate,  or  on  petition  of 
for"a%visionof°"^  °^  morc  pcrsons  otherwise  claiming  any  real  estate  as  tenants  in 
real  estate.       common,  to  appoint  five  commissioners  to  divide  and  appropriate  the 
^uclf  pethmn°"  Same,  or  so  much  thereof  as  shall  be  prayed  for,  and  the  court  shall 
judge  proper  and  requisite  according  to  law.     And  said  commis- 
sioners or  a  majority  of  them,  being  first  sworn  to  do  justice  among 
the  claimants,  according  to  the  best  of  their  skill  and  abihties,  are 
hereby  empowered  to  charge  the  more  valuable  dividend  or  divi- 
dends with  such  sum  or  sums  as  they  shall  judge  necessary,  to  be 
paid  to  the  dividend  or  dividends  of  inferior  value,  in   order  to 
make  an  equitable  division.     And  further,  the  said  commissioners 
or  a  majority  of  them  are  required,  as  soon  as  they  can,  to  make  a 
return  of  their  proceedings  and  appropriations,  under  their  bands 
and  seals,  ascertaining  with  precision  the  different  tracts  or  parcels 
of  lands,  lots  or  houses,  with  actual  surveys  of  the  same  when  ne- 
cessary, to  the  court  by  which  they  were  appointed,  which  return 
and  appropriation  shall  be  certified  by  the  clerk  and  enrolled  in  his 
office,  and  registered  in  the  office  of  the  county  where  such  lands, 
lots  or  houses  respectively  lie  ;  and  such  return  and  appropriation 
shall  be  binding  and  valid  in,  among  and  between  the  claimants, 
their  heirs  and  assigns  forever. 
The  petition  to      2.   In  all  cases  where  the  real  estate  lies  in  different  counties 
be  filed  m  the   ^yiti^in  this  State,  the  petition  for  partition  shall  be  exhibited  in  the 

superior  court  .  x^  ^,^..,.,  ^    ,  , 

when  the  land  supenor  court  01  any  one  of  the  counties  in  whicli  part  oi  the  real 
lies  in  difierent  gg^jjjg  jjgg    gj^j    ^yhere  the  estate  lies  in  one  county  only,  the  peti- 

rnnntip.s.  ^  '  J  J  '  i. 


counties. 


1.  irS7,  c.  274,  s.  1.— 1789,  c.  309. 

2.  1784,  C.  274,  s.  1.— 1803,  C.  636. 


Chap.  LXXXV.]  partition.  451 

tion  shall  be  to  the  superior  court,  or  county  court  of  pleas  and  quar- 
ter sessions  of  such  county  and  no  otherwise,  and  the  proceedings  in 
such  petitions  shall  be  analogous  to  those  in  other  cases  of  petitions. 
And  if  one  of  the  tenants  in  common  shall  be  absent  out  of  the 
State,  it  shall  be  lawful  for  his  co-tenant,  desirous  of  having  said  real  j^  ^^^  co-ten- 
estate  divided,  to  give  notice  of  such  intention,  under  an  order  of  ant  is  absent 
the  court  in  which  the  petition  shall  be  filed,  for   six  weeks  sue-  ad'verUsemeur' 
cessively,  by  advertisement  at  the  court  house  or  three   different  must  be  made. 
places  in  the  county,  and  in  the  State  Gazette,  and  on  proof  there- 
of, the  court  shall  proceed  as  if  a  copy  of  the  petition  and  summons 
had  been  personally  served. 

3.  It  shall  be  the  duty  of  the  commissioners,  appointed  as  afore-  [^"^ivM^^th"*''^^ 
said,  to  divide  the  lands  of  said  tenants  in  common  into  equal  shares  land  as  equally 
in  point  of  value,  as  nearly  as  possible,  by  a  subdivision  of  the  ^®  possible, 
more  valuable  tract  or  tracts  of  land  :  and  in  case  the  situation  of 

the  real  estate  is  such,  that  an  equal  division  cannot  be  made  with- 
out injury  to  the  heirs  or  other  tenants  in  common,  and  some  of  ^j"'^?^?]'g^^"|^'|^^ 
the  heirs  or  other  tenants  in  common  are  obliged  to  be  charged  minors  not  to 
with  a  sum  or  sums  of  money,  to  be  paid  to  the  dividend  or  divi- ^'^^P^^^^'^'l^^'^'^y 
dends  of  inferior  value,  then  and  ia  that  case  the  sum  or  sums,  so 
charged  on  the  dividend  or  dividends,  shall  not  be  paid  until   the 
heir  or  tenant  in  common,  if  a  minor,   shall  arrive  at  the  age  of 
twentyone  years. 

4.  The  sum  or  sums,  so  due  from  the  more  valuable  dividend  foTeL'^hnefe^t 
or  dividends,  shall  bear  an  interest  of  six  per  centum  per  annum 

until  paid  :   Provided  always,  that  the  guardian  or  guardians  of  such 
minor  or  minors,  to  whom  the  more  valuable  dividend  or  dividends 
shall  fall,  shall  at  all  times  be   at  liberty  and  is  required  to  pay 
such  sum  or  sums,  whenever  assets  shall  come  into  his  hands  suffi- 
cient to  discharge  the  same  :  Provided  nevertheless,  that  if  it  shall  min^oVshan 
appear  that  the  guardian  shall  have  had  assets  in  his  hands,  which  py  when  he 
he  did  not  apply  to  the  discharge  of  the  sums  for  which  his  ward  '^^  "^^^^  ^" 
is  liable,  he  the  said  guardian  shall  be  held  and  deemed  answerable 
and  bound  to  pay,  out  of  his  own  proper  estate,  any  interest  which 
shall  have   accrued  thereon  in  consequence  thereof,  and  which 
might  have  been  stopped  had  the  same  been  so  applied. 

5.  Whenever  any  court  shall,  on  any  petition  being  filed  and  g^j^^j^^j^^^^m- 
commissioners  appointed,  order  the  sheriff' of  the  county  where  the  missioners  and 
commissioners  live,  to  summon  them  to  appear  on  the  premises  for  ^^^^^"^  ^  °'"" 
the  purpose  which  may  be  set  forth  in  said  order,  it  shall  be  his 

duty  to  summon  the  same,  and  when  they  or  a  majority  of  them 
shall  have  met,  the  sheriff  or  some  justice  of  the  peace  shall  ad- 
minister the  necessary  oaths,  before  they  proceed  to  execute  the 
purposes  for  which  they  shall  have  been  appointed. 

6.  The  commissioners,  for  their  trouble  and  services,  may  take  missioners. 
and  demand  whatever  the  court,  by  which  they  may  be  appointed.  Court  to  order 
shall  judge  adequate  to  the  trouble  they  may  have  been  at,  and  for  costs  oTthe  pe- 
the  expense  thus  incurred  and  the  expenses  incurred  for  surveyors  ^i^wn  shall  ue 

3.  1S01,C.  583,  s.  1. 

4.  1801,  c.  55S,  s.  2. 

5.  1795,  c.  447. 

6.  1737,  c.  274,  s.  2.— 1528,  C.  25,  s.  1. 


mon. 


452  PARTITION.         [Chap.  LXXXV. 

and  otherwise,  and  all  the  other  costs  of  the  petition,  the    court 
before  whom  the  same  may  be  tried,  may,  at  their  discretion,  de- 
cree by  whom  and  in  what  manner  the  same  shall  be  paid  ;  and 
execution  may  issue  therefor  as  in  other  cases. 
Court  of  equity      7,   It  shall  and  may  be  lawful  for   any   court  of  equity,  in  cases 
^le  of  real  es- of  apphcation  for  a  division  of  real  estate,  when   it  shall  be  sug- 
tate  for  di-       gested  and  made  appear  to  the  satisfaction   of  the   court,  that  an 
cannot  be  di-    actual  partition  cannot  be  made  without  injury  to  some   or  all   of 
vided  otherwise  t}-|g  parties  interested,  to    order   a   sale  of  the  property,  on   such 
dketotSr^*^'  terms   as  such    court  shall   deem  just  and  reasonable:   Provided 
parties.  always,  that  whenever  any  of  the  parties  shall  be  an  infant,  a  feme 

covert,  non  compos,  imprisoned  or  beyond  the  limits  of  this  State, 
it  shall  be  the  duty  of  the  court  to  direct  the  part  of  the  proceeds 
of  the  sale,  to  which  such  person  is  entitled,  to  be  so  invested  or 
settled,  that  the  same  shall  be  effectually  secured  unto  the  person 
so  entitled,  or  his  or  her  real  representatives. 
Court  of  equity  8.  Whenever  any  joint  tenants,  or  tenants  in  common,  or  the 
may  order  a      auardian  of  such,  shall,  on  oath  or  affirmation,  and  by  a  petition  or 

sa.l6  01  rc3,l  6S-  ^  .  .  . 

tate  required     bill,  to  which  all  the  joint  tenants  or  tenants  in  common  shall  be 
lor  public  pur-  jjijj^g  parties,  state  to  a  court  of  equity  that  the  lands  of  such  ioint 

poses,  upon  the  r  '  _  1      j     _  j 

petition  of  the  tenants  or  tenants  m  common  are    required    tor  public  purposes, 
tenants  in  com-  ^^^  ^j^^^  the  interest  of  the  proprietors    requires  that  a    sale   shall 
be  made  thereof,  if  the  said  alleged  facts  shall  be  ascertained   by 
the  court  to  be  true,  it  shall  then  be    lawful  for  the  said    court  to 
order  a  sale  of  the  said  lands,  or  of  such  parts  thereof  as  it  may 
judge  necessary,  in  such  manner  and  on  such  terms  as  it  shall  deem 
expedient  ;  and  it  shall  be  the  duty  of  the  said  court  to  direct  that 
the  part  of  the  proceeds  of  such  sales,  to    which  any  infant, /erne 
covert  or  person  non  compos  may  be  entitled,  be  so  invested  as  that 
the  same  shall  be  effectually  secured  to  the  person  so  entitled,  or 
to  his  or  her  real  representatives. 
Where  the  sale      9.   Whenever  the  court  of  equity  shall  order  the  sale    of  real 
shall  be  made,  ggt^^e,  belonging  to  joint  tenants  or  tenants  in  common  ;  the  court 
at  their  discretion,  may  direct  such  sale  to  be  made  on  the  prem- 
ises, or  at  any  place  within  the  county,  where  such  estate  is  situated. 
Provided  alivays,  that  when  the  order  of  sale  shall  contain  no  such 
direction,  sales  shall  be  made  at  the   places  prescribed   by  law  for 
public  sales. 
The  deed  of  the      10.   In  all  cases  arising  under  the  seventh  and  eighth  sections  of 
'^^^'^'h^'i^  ^^^'  ^^^^  ^^^'  ^^^  deed  of  the  clerk  and  master  of  the   court  ordering 
the  title.  the  sale,  shall  be  held,  deemed  and    taken  as   good  and   sufficient 

to  convey  to  the  purchaser  such  title,  interest  and  estate  in  the 
lands,  tenements  and  hereditaments,  ordered  to  be  sold,  as  the 
respective  tenants  in  common  or  joint  tenants  had  therein,  which 
deed  shall  recite  in  substance  the  petition  of  the  said  tenants  and 
the  decree  of  the  court  ordering  the  sale. 
Where  there  is      H.   When  an  application  shall  be  made  to  a  court  of  equity,  by 

dower  on  the 

7.  1812,0.  847. 

8.  1818,  c.  982,  s.  1. 

9.  1827,  c.  41. 

10.  1818,  c.  982,  s.  2. 

11.  1819,  c  1026. 


Chap,  LXXXV.]         partition.  "  453 

joint  tenants  or  tenants  in  common,  for  a  sale  of  real  estate  which  land,  the  court 
is  incumbered  with  dower,  it  shall  and  may  be  lawful,  if  the  person  s^iJ^and  appor- 
holding  or  entitled  to  dower  therein,  shall  join  in  said  application,  tion  the  dower 
for  the  court  to  decree  an  immediate  sale  of  the  said    real  estate, 
and  to  cause  a  third  part  of  the  proceeds  thereof,  to  be  secured  to 
the  use  of  the  person,  so  holding  or  entitled  to  dower  therein   for 
life,  or  to  ascertain  the  value  of  such  life  estate   in  such  land,  and 
to  decree  the  value  so  ascertained,   to  be  paid    over  to  the  person 
thus  claiming  absolutely. 

12.  Whenever,  on  the  death  of  any  person,  his   lands  in    this  Proceedings 
State,  and  also  in  another  state    or    states,  shall    descend   or    be  d^g^cende'd'^ 
devised  to  several  persons,  who,  by  the  laws  of  this  and  the  other  devised  lie 
state  or  states  shall  hold  in  the  lands,  so  descended  or  devised,  undi-  stateVnd^tmrt- 
vided  estates  or  interests,  whether  as    parceners,  tenants  in    com-lyin  another 
mon  or  joint  tenants,  or  by  any  other  undivided  tenancy,  and  such  ^'^^^' 

heirs  or  devisees  cannot  without  suit  have  partition  for  want  of 
consent,  or  because  of  inability  in  one  or  more  of  the  co-tenants, 
if  such  deceased  person  shall  have  been  at  the  time  of  his  death, 
a  resident  of  this  State,  or  not  a  resident  at  that  time  of  any 
of  the  states,  in  which  his  said  lands  lie,  and  in  the  last  case 
the  most  valuable  part  of  his  lands  shall  lie  in  this  State,  it 
shall  be  lawful  for  any  such  heir  or  devisee  or  any  person  claiming 
by,  through  or  under  them,  to  file  a  bill  in  the  superior  court  of 
equity,  either  for  the  county,  where  the  deceased  person  resided 
at  his  death,  or  wherein  any  one  tract  or  part  of  a  tract  of  the 
land  lies  in  this  State,  setting  forth  all  the  lands  in  which  the 
plaintiff  has  an  undivided  estate,  as  well  those  without  as  those 
within  the  State,  described  by  their  names  and  boundaries  or  by 
the  adjoining  tracts,  and  also  the  estate  the  testator  or  intestate  had 
in  them,  and  the  supposed  value  of  the  lands  in  each  state,  and  the 
share  in  severalty,  to  which  the  plaintiff  and  each  of  his  co-tenants 
is  entitled,  under  the  laws  of  the  several  states,  in  which  the  sev- 
eral tracts  or  parts  of  tracts  may  lie,  and  praying  for  partition  to 
be  made  of  all  the  tracts,  as  if  the  lands  were  situated  within  the 
jurisdiction  of  one  sovereign  state,  respect  being  had  to  the  value 
of  interest,  to  which  the  several  co-tenants  in  joint  tenancy,  in 
common  or  co-parcenary,  or  other  undivided  tenancy,  may  have  in 
the  several  tracts,  by  the  laws  of  the  several  states  in  which  they 
may  be  situated,  and  the  material  facts  set  forth  in  the  said  bill 
shall  be  verified  by  the  affidavit  of  the  plaintiff  or  his  guardian,  or 
other  person,  at  the  discretion  of  the  court,  and  on  the  exhibition 
of  such  bill  all  persons,  concerned  in  interest  in  the  lands,  of 
which  partition  is  to  be  made,  shall  be  made  parties  by  process  or 
publication,  as  in  other  cases  in  equity,  according  to  the  practice  of 
the  courts  of  equity  in  this  State. 

13.  On  the   hearing  of  any  such  bill,  the  court  may  and  shall.  The  court  may 
by  interlocutory  order,  decree  a  partition  of  all  the  lands   in  the  5?"'^^  ^  P^""; 

•'..^  •'  \  ...f,  I'll      tition  of  such 

seizin  01  any  tenants  ot   an  undivided  estate  or  estates,  derived  by  lands. 
descent  from  a  common  ancestor,  or  by  devise  from  any  testator, 
and  shall  allot  in  severalty  to  each  tenant,  his  just  share  of  the  lands, 

12.  1831,  c.  25,  s,  1. 

13.  1831,  c.  25,  S.   2. 


454 


PARTITION.  [Chap.  LXXXV. 


partition  of 
such  lands. 


according  to  the  value  of  the  interest  he  has   in  all  the  lands  de- 
scended   or   devised  to  him,  by  the  laws  of  the   several  states 
respectively  in  which  they  are  situate, 
pokfcommisi''      ^^-   "^^^   court,  making  such  interlocutory  decree,  shall  issue 
sioners.  a  commissiou  to  five  respectable  freeholders  in  this  or  in  any  state, 

^"^^Lfn^Ilc  where  land  may  lie,  unconnected  by  blood  or  interest  with  the 
in  making  a      parties,  directuig  the  said  commissioners,  or  any  three  of  them,  to 
make  partition  between  the  co-tenants,  plaintiffs  and  defendants  in 
said  bill,  and  to  assign  each  his  respective  share  in  value,  in  sev- 
eralty, in  any  tract  or  tracts  in  any  or  all  the  states,  having  respect 
to  the  value  of  the   interest  he  has  under  the  laws  of  the  several 
states,  and  before  making  such   allotment  the  said  commissioners 
shall  make  a  valuation  of  all  the  lands  held  by  the  co-tenants,  by 
descent  or   devise,  in  all   the  said  states  ;  and  where  they  cannot, 
without  injury  to  the  value  of  some  shares,  make  an  exact  division 
of  the  lands,  the  said  commissioners  shall  have  power  to  charge 
the  more  valuable   dividend   or  dividends  with  the  sum  of  money, 
to  be  paid  to  the  tenant  in  severalty  of  a  less  valuable  dividend,  to 
make  an  equality  of  partition  ;  and  the  said  commissioners,  or  any 
three  of  them,  shall  report  their  proceedings  on  said  comiinission, 
as  they  may  be  directed,  and  said  report  shall  contain  a  valuation 
of  all  the  estate  in  the   lands  in  this  and  the  other  state  or   states, 
with  respect  to  the  laws  of  each  state,  and  the  division  among  the 
co-tenants,  according  to  such  valuation,  and  the  court  may  confirm 
such  report,  or,  on  sufficient  cause  shown,  may  correct  and  alter, 
or  may  set  it  aside  and  order  a  new   commission,  and  the   court 
may  on  motion  allow  each  commissioner  a  sum  not  exceeding  three 
dollars   per  day  for   his  services,  and,  where   any  sum  is  charged 
upon  a  more  valuable  dividend,  the  court  may  direct,  if  the  tenant 
taking  such  a  dividend  in  severalty  be  an  infant,  or,  if  otherwise, 
it  seem  to   the  court  equitable,  that  the  sum   charged  shall  not  be 
paid  until  a  future   day,  and  may  direct  that  the  same  shall  bear 
interest   at  any  rate  not  greater  than  the  interest  by  law  allowed  in 
this  State  :  Provided  always^  that  the  tenant  of  the  larger  dividend 
may  discharge  himself  from  accruing  interest  by  paying  the  whole 
amount  due,  at  any  time  ;  and  the  sum  due  from  the  greater  divi- 
dend shall  be  a  charge  on  the  land,  into  whose  hand  soever  it  may 
comCj  although  it  may  be  taken  without  notice,  and  the  court  shall, 
upon  the  confirmation  of  any  report  of  the  commissioners,  make  a 
final  decree  ;  and  where  all  the  parties  are  within  the  jurisdiction 
of  this  court,  the  court  shall,  by  the   usual  proceedings  in  equity,, 
direct  and   compel  the  said  parties   to   execute  and  deliver  deeds 
and  assurances,  suflicient,  by  the  laws  of  this  State  and  the  other 
states,  to  give  the  partition  made  full  force  and  vahdity  in  all  the 
states  ;  and  in  case  any  of  the  said  parties  are  under  such  disabili- 
ties that  they  cannot  execute  such  assurances,  or  are  without  the 
jurisdiction  of  the  courts  of  this  State,  and  so  cannot  be  affected 
by  their  process,  then  the   court,  upon  receiving  evidence  from 
the  plaintiffs,  that  by  a  law  or  laws  of  the  other  state  or  states,  in 
which  the  parts  of  the  lands,  described  in  the  bill,  without  this  State 


What  final  de 
cree  the  court 
may  make. 


14.   1831,  c.  25,  s.   3. 


Chap.  LXXXV.]  partition. 


455 


lie,  the  decree  can  have  effect  on  the  said  lands,  shall  direct  the 
decree  to  be  enrolled  in  the  records  of  the  court,  and  a  copy  of  it 
shall  be  registered  in  the  register's  office  of  all  the  counties  within 
this  State,  where  any  of  the  lands  he,  and  a  copy  shall  be  also 
furnished  to  the  plaintiff  or  other  party  interested,  certified  accord- 
ing to  the  acts  of  congress,  prescribing  the  manner  in  which  the 
records  and  judicial  proceedings  of  one  state  shall  be  proved,  so  as 
to  have  full  faith  and  credit  in  another  state,  to  the  end  that  it  may 
be  carried  into  effect,  as  to  the  lands  without  this  State,  in  the 
state  or  states  in  which  the  said  lands  may  be,  by  such  court  and  ■ 
in  such  manner  as  said  state  or  states  by  a  law,  made  substantially 
in  accordance  with  this  act  of  assembly,  may  direct ;  and  on  sat- 
isfactory evidence  being  made  to  the  court  in  this  State,  as  afore- 
said, that  the  decree  may  have  full  effect  by  such  law  of  such  other 
state,  the  court  in  this  State  shall,  by  its  deci-ee,  declare  the  par- 
tition in  the  land  in  this  State  to  be  final  and  conclusive,  and  the 
said  decree  shall  be  firm  and  irreversible,  as  hereinafter  provided, 
and  shall  on  registration,  as  aforesaid,  pass  the  title  to  the  tenants 
in  severalty  to  the  lands  in  this  State,  in  the  same  manner  as  if  all  „„ 

,       ,       ,      •'  .  1-1         1  •  •  T  •       1  •     o  When  a  de- 

the  lands  mentioned  m  the   decree  were   situate  withm  this  otate.  cree  for  parti- 
15.   In  any  case,  where  real  estate   may  be  partly  in  this  State  ^io^  ^  another 

,  ,.-'  ,  1111  state  may  be 

and  partly  in  another  state  or  states,  and  the  deceased  person,  enforced  in 
from  whom  it  was  derived  by  descent  or  devise,  was  at  the  time  ^his  state. 
of  his  death  a  resident  in  some  other  state,  or  was  a  resident  of 
none  of  the  states,  in  which  he  held  lands,  and  in  this  last  case, 
the  lands,  of  which  he  was  seized  in  this  State,  were  of  less  value 
than  the  lands  of  which  he  was  seized  in  any  one  other  state,  the 
courts  of  record  in  such  state,  in  which  such  deceased  person 
had  his  residence  at  his  death,  or  in  which  he  held  lands  of  greater 
value  than  those  he  held  in  this  State,  shall  have  full  power  and 
authority,  under  any  law  passed  by  the  legislature  of  such  state, 
substantially  in  accordance  with  this  act  of  assembly,  to  decree 
partition  of  the  lands  in  this  State,  together  with  those  within  the 
territory  of  such  other  state  or  states,  in  the  same  manner  as  if 
the  whole  real  estate  were  within  the  jurisdiction  of  such  court, 
and  in  the  same  manner  as  the  courts  in  this  State  are  directed  and 
authorized  to  do  by  the  preceding  section  of  this  act,  as  to  the 
lands  of  deceased  persons  resident  here  at  their  death,  or  having 
lands  of  greater  value  here  than  in  any  other  state  or  states,  in 
respect  of  the  lands  in  such  state,  and  in  case  any  person,  having 
an  interest  in  the  final  decree  made  as  aforesaid  in  another  state,  as 
to  lands  in  this  State,  shall  within  twelve  months  after  the  same  may 
be  entered  up  in  the  said  courts  in  said  state,  produce  the  record 
and  proceedings  of  such  courts  of  record,  certified  according  to 
the  acts  of  congress  before  referred  to,  to  a  superior  court  of 
equity  in  this  State,  where  any  of  the  lands  in  this  State  lie,  it 
shall  be  the  duty  of  the  court,  on  petition  in  writing  ex  parte,  in 
such  case,  to  order  such  proceedings  to  be  entered  of  record  in 
said  court  of  this  State  by  the  proper  officer,  and  to  order  that  the 
said  decree  shall  be  of  the  same  force  and   validity,  as  if  it  had 


15.   1831,  c.  25,  s.  4. 


456  PARTITION.         [Chap.  LXXXV. 

been  a  decree  of  the  court  in  this  State,  in  which  the  petition  is 
filed,  upon  an  original  bill  and  regular  proceedings  had  thereon  ;  and 
such  decree  of  the  court  of  such  other  state,  and  the  proceedings  , 
on  it  by  petition  in  the  superior  court  in  this  State,  confirming  it 
and  giving  it  validity,  being  enrolled  in  the  said  court  of  this  State, 
and  registered  in  all  the  counties  where  the  lands  lie  in  this  State, 
shall  pass  said  lands  in  this  State  according  to  said  decree,  and 
shall  vest  estates  in  severalty  therein  declared,  as  to  said  lands,  in 
the  same  manner  and  with  the  same  effect  in  law,  as  if  the  lands 
in  this  State  had  been  so  allotted  on  a  petition  for  partition,  ac- 
cording to  the  provisions  of  the  former  sections  of  this  act. 
Court  to  judge       16.   Where  a  copy  of  a  decree  and  proceedings  of  a  suit  in  any 

Tr^staie^  has''^'^^^^^^^  ^^^'•^  ^^^^^  ^®  produced,  as  in  the  preceding  section  of  this 
passed  a  law  in  act  is  authorized,  and  also  when  it  is  necessary  for  a  court  of  equity 
thii°'^'"'^^  *°    to  be  certified,  that  its  decree  of  partition  of  lands,  without   this 
State,  and  within  the  territory  of  another  state  or  states,  can  have 
effect  in   said  state,  it  shall  be  competent  for  the  court  of  equity, 
before  which  the  existence  of  a  law  in  such  other  state,   in  con- 
i'ormity  with  this  act,  is  to  be  proved,  to  judge  whether  any  act  of 
the  legislature  of  such  state  has  been  passed,  and  whether  it  be  in 
conformity  with  this  law,  and  to  that  end  to  receive  either  the  acts 
of  the  legislature  of  such  state,  printed  by   authority,  or  a  copy 
duly  certified  under  the  acts  of  congress  in  such  cases  made. 
Time  allowed        l'^'  On  an  Original  bill  under  the  twelfth  and  fifteenth  sections 
to  femes  covert,  of^  this  act,  as  against  feyne  coverts.^   infants,  persons  non  compos 
inans,    c.       ^^i^ntis,  and  against  all   parties,   against  whom  judgment  shall   be 
taken  pro  confesso  on  publication,  the  final  decree  shall  be  entered 
up  with  a  reservation  in  favor  of  such   party,   against  whom  judg- 
ment was  taken  pr-o  confesso  to  file  his  answer,  within  three  years 
after  the   final  decree,  to  have  said  decree  corrected  or  reversed, 
and  with  like  reservations  to  have  the  same  so  reversed  or  correct- 
ed as  to  feme  coverts,  infants  and  persons  non  compos,  within  three 
years  after  their  several  disabilities  removed,  and,  after  the  time 
saved  by  said  reservation  shall  have  expired,  said  final  decree  as 
against  all  such  persons  and  those  claiming   under   them,   and  all 
other  persons,  parties  and  previes  to  the  decree,  after  three  years 
from  and  after  the  enrolment  of  the  same,  shall  be  irreversible  by 
petition  for  rehearing,  or  bill  of  review,  or  other  proceedings  in 
equity  ;  and  any  suit  by  bill,  under  the  twelfth  and  fifteenth  sec- 
tions of  this  act,  may  be  removed  into  the  supreme  court  for  hear- 
ing, upon  affidavit  as  in  other  cases  in  equity,  and  the  final  decree 
in  any  such  suit,  shall  be   subject  to  an  appeal  to  said  supreme 
court. 
How  a  parti-         18.   When  any  two  or  more  persons  shall  be  entitled,  as  tenants 
afm-operty^""^"  common,  to  any  ncgro  or  negroes,  or  other  chattel  property,  and 
among  tenants  any  one  or  all  shall  be  desirous  to  have  a  division  of  the  same,  it 
may" be"made    ^^^^^^  ^^^^  ^^^7  ^^  lawful  for  such  person  or  ])ersons  to  file  a  petition 
in  the  county  or  superior  court,  for  that  purpose,  under  the  same 

16.  1831,  c.  25,  s.  5. 

17.  1831,  c.  25,  s.  6. 

18.  1829,  c.  17,  s.  1. 


Chap.  LXXXV.]  partition.  457 

rules  and  regulations  as  are  prescribed  in  the  other  cases  of  peti- 
tion, and  if  a  division  can  be  had  without  a  sale  of  said  negroes  or 
other  chattel  property,  then  the  court  may  appoint  three  freehold- 
ers, unconnected  with  the  parties  by  consanguinity  or  affinity,  who, 
first  being  duly  sworn,  shall  divide  such  property  as  nearly  co- 
equally  as  possible,  and  allot  to  each  tenant  in  common  his  or  her 
share  in  severalty,  and  make  report  to  court  as  directed,  and,  if 
such  report  be  confirmed  by  the  court,  a  decree  or  judgment  shall 
be  entered  accordingly  and  vest  in  each  tenant  in  common  his 
or  her  share  in  severality. 

19.  Whenever  a  division  of  such  negroes,  or  other  chattel  prop-  When  personal 
erty,  cannot  be  had  without  injury  to  some  of  the  parties  interested,  ^eTold^oTa^ 
and  a  sale  thereof  may  be  deemed  necessary  by  the  court,  it  shall  dmsion. 

be  the  duty  of  the  court  to  order  a  sale  of  the  same,  and  the  clerk 
of  the  court  in  which  said  petition  may  be  filed  and  order  of  sale 
made,  or  some  other  fit  person  to  be  appointed  by  said  court,  shall 
sell  the  said  negroes,  or  chattel  property  held  in  common,  after 
giving  thirty  days'  notice  in  three  or  more  public  places  in  the 
county  by  pubhc  advertisement,  and  the  deed  of  said  clerk  or  per- 
son so  appointed  shall  be  deemed  and  taken  as  good  and  sufficient 
to  convey,  to  the  purchaser  of  said  property  at  such  sale,  such 
title,  interest  and  estate  in  the  said  negroes  or  other  chattel  prop- 
erty sold,  as  the  respective  tenants  in  common  or  joint  tenants  had  ; 
and  the  clerk,  or  person  appointed  as  aforesaid,  shall  report  to  the 
court,  from  which  the  decree  of  sale  issued,  all  his  proceedings  in 
such  case,  acd  the  court  shall  secure  to  such  tenant  in  common  or 
joint  tenant,  his  or  her  ratable  share  in  severalty  of  the  proceeds  of 
such  sale. 

20.  Whenever  a  petition  is  filed  under  the  provisions  of  the  two  Court  may  ap- 
last  sections,  and  either  party  concerned  may  be  an  infant,  or  per-  ^°an\o  IT^' 
son   non  compos  mentis^  it  shall  be  lawful  for  the  court,  in  which  infant,  &c. 
the  petition  may  be  filed,   to  appoint   a  guardian  for  such  party, 

should  there  be  no  regular  guardian. 

21.  The  freeholders  appointed  to  make  division,  or  the  clerk  of  Compensation 
the  court  or  other  person  appointed  to  make  a  sale  of  negroes,  or  J^oide'rs,'^ clerk 
other  chattel  property,  held  in  common,  shall  be  entitled  to  com-  or  other  com- 
pensation for  their  services,  to  be  judged  of  by  the  court  and  taxed 
in  the  bill  of  costs,  all  of  which  shall  be  paid  by  the  parties  to  said 
petition  in  such  manner  as  the  court  may  deem  just. 

19.  1829,  c.  17,  s.  1.— 1830,  c.  39. 

20.  1830,  c.  39. 

21.  1829,  c.  17,  s.  2,  amended. 


nussioner. 


Note. — References  to  Adjudged  Cases. 

Sect.  1.  Anders  vs.  Anders,  2  Dev.  529.     Wynn  vs.  Tunstall,  1  Dev.  Eq.  23.     Niceiar 
vs.  Barbrick,  1  Dev   and  Bat.  257. 

Sect.  7.  Strudwick  vs.  Ashe,  3  Murph.  207.     Hickstall  vs.  Powell,  4  Hawks,  216. 
Sect.  8.  -Ex  parte  Dozier's  heirs,  1  Dev.  Eq.  118.     Bryan  I's.  Bryan,  ib.  47. 

VOL.   I.  58 


458  PATROL.  [Chap.  LXXXVI. 


CHAPTER   86. 
PATROL. 


AN  ACT   CONCERNING   THE  APPOINTMENT  AND  DUTIES   OP  A  PA- 
TROL IN  EACH  COUNTY. 


Section 

1.  County   courts  to   appoint  a  patrol 

committee,  who  shall  employ  a  pa- 
trol— Proviso  that  the  county  courts 
may  also  employ  a  patrol. 

2.  Penalty  on  the  patrol  committee  for 

refusing  to  act. 

3.  Duties  and  powers  of  the  patrol. 


Section 

4.  County  courts  to   adopt  rules  for  the 

regulation  of  the  patrol. 

5.  Patrol  committee  may  discharge  pa- 

trollers,  and  appoint  others. 

6.  Penalty  on  patrol  for  refusing  to  act. 

7.  Compensation  to  patrol. 


1„  Be  it  enacted  hy  the  General  Assembly  of  the  State  of  J^orth 

Carolina,  and  it   is  hereby  enacted  by  the  authority  of  the  same, 

County  courts    "phat  it   shall  be   the   duty  of  the  county  court  of  each  county, 

to  appoint  a  .    •'  ,        r  i  i    ii 

patrol  commit-  should  the  court  deem  it  necessary,  at  the  nrst  court  that  shall 
tee,  who  shall  j-jappen  after  the  first  day  of  January,  in  each  and  every  year,  or 
patrol.  any  subsequent  court,  to  appoint  a  patrol  committee  of  three  per- ' 

sons,  in  each  captain's  district  in  said  county,  whose  duty  it  shall 
be  to  employ  a  patrol  of  such  number  of  persons,  as  they  may 
Proviso  that      think  nccessary  to  patrol  their  district  :   Provided,   that  nothing 
coui^ts"may       herein  contained  shall  be  construed   to   prevent  the  county  courts 
also  appoint  a   from  appointing  such  patrol  as  they  may  deem  proper. 
Penalty  on  the       2.   Any  pcrson,   appointed  one  of  the   patrol   committee,   and 
patrol  commit-  who  shall  refuse  or  neglect  to  discharge  the  duties  imposed  by  the 
tract!       '^^"^  preceding  section,  shall  be  subject  to  a  penalty  of  twentyfive  dol- 
lars, to  be  recovered  on  motion   to  the  court  by  the  prosecuting 
officer  of  said  county,  and,    when   recovered,   to  be   paid  over  to 
the   county  trustee,  to  form  a  fund  in  aid  of  the  tax  in  support  of 
the  patrol. 
Duties  and  ^-   ^^  ^^^^^^  ^^  ^^^^  ^^^J  o^  the  patrol  to  visit  the  negro  houses  in 

powers  of  the    their  respective  districts,  as  often  as  may  be  necessary,  and  to  in- 
patro  .  njpj.  g  punishment,  not  exceeding  fifteen  lashes,  on  all  slaves  they 

may  find  off  their  owner's  plantations,  without  a  proper  permit  or 
pass,  designating  the  place  or  places,  to  which  the  slave  or  slaves 
have  leave  to  go.  It  shall  also  be  the  duty  of  the  patrol  to  visit 
all  suspected  places,  and  suppress  all  collections  of  slaves  ;  it  shall 
also  be  their  duty  to  be  diligent  in  apprehending  all  runaway  negroes 
in  their  respective  districts,  to  be  vigilant  and  endeavor  to  detect 
all  thefts,  and  bring  the   perpetrators  to  justice,   and  also  all  per- 

1.  1830,  c  16,  s.  1  and  4. 

2.  1835,  c.  22,  s.  2. 

3.  1830,  c.  16,  s.  3.— 1S02,  c.  616,  s.  2.— 1794,  c.  406,  s.  5. 


Chap.  LXXXVIL]         pensions. 


459 


sons    guilty  of  trading  with  slaves.      The  patrol  thus   employed, 

shall  have  such  powers  as  may  be  necessary  to  a  proper  discharge 

of  the  duties  herein  enjoined,  and  if,    upon   taking  up  a  negro  and 

■  chastising  him,  as  herein  directed,  he  shall  behave  insolently,  they 

L  may  inflict  further  punishment  for  his  misconduct,  not  exceeding 

^  thirtynine  lashes. 

4.  It  shall  be  the  duty  of  the  several  county  courts,  to  adopt  all  r< 

/  .      .  ^  '  J^  oounty  courts 

necessary  rules,  regulations  and  restrictions,  lor  the  government  of  to  adopt  rules 
the  patrol  of  the  respective  counties,  and  the  patrol,  when  appoint- [°Jjj^^f  ^^|"^^' 
ed,  shall  be  subject  to  the  same,  and  under  such  fines  and  penalties  patrol, 
as  the  said  court  shall  fix  and  direct. 

5.  The  patrol  committee  shall  have  full  power  and  authority  topatroi  commit- 
dis charge  any  one  or  more  of  the   patroUers,  and  employ  others,  ^ee  may  dis- 
at  any  time  when  they  may  think  it  expedient.  lers'^ani'ap-° ' 

6.  Any  person,  who  shall  be  appointed  a  patrol  under  this  act,  poi^t  others. 
and  who  shall  refuse  or  neglect  to  serve,  shall  be  subject  to  a  pen- rol'for^efus^no-' 
alty  of  twenty  dollars,  to   be   sued  for   in  the  name  of  the  State,  to  act. 

by  the  patrol  committee  of  his  particular  district,  and  when  recov- 
ered, shall  be  paid  over  by  them  to  the  county  trustee,  to  form  a 
fund  in  aid  of  the  tax  for  the  support  of  the  patrol. 

7.  The  patrol,  appointed  under  this  act,  shall  receive  such  com-  Compensation 
pensation  for  their  services  as  may  be  allowed  them  by  the  county '^o  P^*^™!- 
court,  and  shall  also  be  exempted  from   working  on  the  road,  and 

from  the  militia  service,  except  in  times  of  invasion  or  insurrec- 
tion. 

4.  1830,  c.  16,  s.  5.— 1802,  c.  616,  s.  1. 

5.  1830,  0.  16,  s.  3. 

6.  1S30,  c.  16,  s.  6. 

7.  1794,  c.  406,  s.  3. 


Note. — References  to  adjudged  Cases. 
Sect.  3.  Tate  vs.  Oneal,  1  Hawks,  418. 


CHAPTER  87. 


PENSIONS. 


AN  ACT  FOR  THE  RELIEF  OF  SUCH  PERSONS  AS  HAVE  BEEN  DIS- 
ABLED BY  WOUNDS,  OR  RENDERED  INCAPABLE  OF  PROCURING 
FOR  THEMSELVES  AND  FAMILIES  SUBSISTENCE,  IN  THE  MILITIA 
SERVICE  OF  THIS  STATE,  AND  PROVIDING  FOR  THE  WIDOWS 
AND  ORPHANS  OF  SUCH  AS  HAVE  DIED 


Section 

1 .  Pensions  allowed  to  persons  disabled 
in  the  militia  service. 


Section 
2.  And  to  their  widows  and  orphans. 


/^^^■f-   c^^^- 


460 


Pensions  al- 
lowed to 
persons  dis- 
abled in  the 
militia  service 


And  to  their 
widows  and 
orphans. 


PILOTS.  [Chap.  LXXXVIII. 

1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of 
J^orth  Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  every  person,  who  shall  come  within  the  above  description, 
shall  apply  to  the  court  of  the  county  in  which  he  shall  reside, 
which  court,  on  such  application,  shall  certify  to  the  General  As- 
sembly the  distresses  of  such  person,  who  shall  have  an  allowance 
adequate  to  his  relief  for  one  year,  which  allowance  shall  be  con- 
tinued for  the  next  succeeding  year,  and  so  long  as  such  court 
shall  certify  such  person  to  continue  under  the  description  afore- 
said ;  which  order  or  certificate  of  court,  being  countersigned  by 
the  speakers  of  the  General  Assembly,  shall  be  a  sufficient  voucher 
to  any  sheriff,  collector  or  treasurer,  paying  the  same,  in  the  settle- 
ment of  their  public  accounts. 

2.  The  widows  and  orphans  of  such  persons,  as  come  within 
the  above  description,  shall  be  entitled  to  obtain  relief  on  applica- 
tion to  the  county  court,  in  the  same  manner  as  those  disabled 
persons  before  mentioned. 


1.  1784,  c.  199,  s.  1. 

2.  1784,  c.  199,  s.  2. 


CHAPTER  88. 

PILOTS  AND  COMMISSIONERS  OF 

NAVIGATION. 


AN  ACT  TO  REDUCE  INTO  ONE  THE    SEVERAL  ACTS    CONCERNING 
PILOTS  AND  COMMISSIONERS  OF  NAVIGATION. 


Section 

X.  Commissioners  of  navigation  for 
Cape  Fear,  how  appointed — To  ap- 
point a  clerk. 

2.  Powers  of  commissioners. 

3.  Power  of  the  said  commissioners  as 

to  pilotage. 

4.  Harbor  masters  to  be  appointed. 

5.  Commissioners  to  appoint  pilots. 

6.  Bond  to  be  given  by  pilots. 

7.  Pilots   may  be   removed   for  misbe- 

havior. 

8.  Penalty  on  persons  not  authorized  as 

pilots  for  acting  as  such. 

9.  Commissioners   to   decide  disputes 

between  masters  and  pilots. 
10.  No  stay  of  execution  allowed — But 
appeal  may  be  taken. 


Section 

1 1 .  Notice  to  be  given  when  the  rates  of 

pilotage  are  altered. 

12.  Commissioners  to  prescribe  the  num- 

ber of  boats  for  pilots. 

13.  Rights  of  the  pilots  as  to  the   Main 

and  New  Inlet  bars  of  Cape  Fear. 

14.  Pilots  to  keep  apprentices. 

15.  Penalty  on  pilots   for  not  attending 

when  requested — Proviso  as  to  bar 
pilots. 

1 6.  Masters  to  pay  pilots  for  detention. 

17.  Penalty  on  pilots  for  refusing  or  ne- 

glecting to  go  to  a  vessel  shewing 
a  signal. 

18.  Pilots  entitled  to  full  pilotage  though 

the  master  refuse  to  take  them. 


,f^&-7-    //    */■    ^ 


^ 


Chap.  LXXXVIII.]         pilots. 


r<^l.^ 


eZ  /j  sr 


Section 
19.  When    pilots    entitled    to  only  one 
third  fees. 

Rate  of  charge  when  vessel  deepens 
or  lightens. 

Bar  pilots  to  have  a  telescope  or  spy- 
glass. 

What  vessels  exempt  from  pilotage. 

Throwing  ballast,  &c.  into  the  river 
prohibited. 

Penalty  on  captain  of  a  vessel  from 
which  ballast  is  so  thrown. 

Duties  and  powers  of  the  commis- 
sioners in  this  respect. 

Penalty  on  branch  pilots  for  not  in- 
forming when  ballast  is  thrown  out. 
Commissioners  of  navigation  for 
Newbern,  Washington  and  Eden- 
ton  to  be  appointed. 

Power  of  such  commissioners. 

Board   of  commissioners  appointed 
for  Ocracock — Their  duty  in  regard 
to    pilots — Their    compensation- 
Oath  to  be  taken  by  them. 

What  vessels  shall  be  compelled  to 
take  a  pilot. 

Pilot    becoming    incompetent,    his 
branch  may  be  revoked. 

Commissioners  of  navigation  for  old 


20. 

21. 

22. 
23. 

24. 

25. 

26. 

27. 


28. 
29. 


30. 


31. 


Section 


/^4^,/.  ^Z 


^x-  ^/. 


^i 


461 


32. 


Topsail  inlet — For   Bogue    inlet — • 

Their  duty  and  powers. 
Penalty  for  piloting  without  a  branch. 
Bonds  to  be  given  by  pilots. 
Commissioners  of  navigation  may 

remove   pilots — Penalty  for   acting 

after  removal. 
Penalty  on  pilots  refusing   to  go  to  a 
vessel  having  a  signal. 
Pilots'  pay  if  driven  off  the  coast 

after  boarding. 
Pilots  entitled  to  pay  if  they  go   off 

to  a  vessel  though  the   master  will 

not  take  them. 
No  pilotage  on  vessels  under  sixty 

tons  burthen. 
Rates  of  pilotage  for  the  Ocracock 

pilots. 
Rates  at  Old  Topsail  inlet. 
Rates  for  Bogue  inlet. 
Rates  of  pilotage  to  be   annexed  to 

the  branches. 
No  slave  to  act  as  pilot  over  any  bar. 

Penalty  for  throwing  ballast  into  any 

channel. 
46.  How  penalties  and  fines   to  be  dis- 
posed of. 


33. 
34. 
35. 


36 


37 


33 


39. 

40. 

41. 
42. 
43. 

44. 
45. 


1.  Be  xl  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the   same, 

That  at  the  first  court  of  pleas  and  quarter  sessions,  to  be  held  for  Commissioners 

1  r  TVT  TT  c  ■'i        ^  1  c   i\r  u       of  navigation 

the  county  oi  JNew  Hanover,  alter   the  first  day  ot  May  annually,  for  Cape  Fear, 

the  justices  of  the  said  court,  a  majority  being  present,  shall  ap-  ^^"^  appointed. 

point  five  discreet  persons  to  act  as  commissioners   of  navigation 

and  pilotage   for  Cape   Fear  river,  and   said  commissioners   are 

authorized  and  empowered  to  appoint  a  clerk,  whose  duty  it  shall 

be  to  keep  a  book,  and  record  therein   all  the   orders,  rules  and  To  appoint  a 

proceedings  of  the  said  board  of  commissioners. 

2.  The  said   commissioners  shall  have  authority,  in   all  matters  Powers  of  the 
that  may  concern  the  navigation  of  the  said  river,  from  Negrohead  commissioners, 
point  downwards  and  out  of  each  of  the  inlets  ;  and  with  respect 

to  throwing  trash  in  the  river  at  the  town  of  Wilmington,  and  the 
construction  of  wharves,  shall  have  a  concurrent  jurisdiction  with 
the  commissioners  of  the  town  of  Wilmington,  and  the  commis- 
sioners of  pilotage,  and  the  commissioners  of  the  said  town,  shall 
consult  together,  upon  the  best  methods  of  preventing  any  injury 
being  done  to  the  channel,  by  wharves  or  otherwise,  opposite  to  the 
said  town,  and  when  there  is  no  harbor  master,  the  commissioners 
of  pilotage,  or  such  of  them  as  shall  reside  in  the  town  of  Wil- 
mington, shall  decide  all  disputes  about  the  moving  of  vessels  and 
other  matters,  which  properly  fall  within  the  department  of  a  har- 
bor master. 


1831,  c.  91.— 1802,  c.  626,  s.  1. 
r/84.  C,  207,  s.  15. 


462 


PILOTS.         [Chap.  LXXXVIII. 


Power  of  the 
said  commis- 
sioners as  to 
pilotage. 


Harbor  master 
to  be  appointed. 


Commissioners 
to  appoint 
pilots. 


Bond  to  be 
given  by  pilots. 


Pilots  may  be 
removed  for 
misbehavior. 


3.  The  said  commissioners  shall  be  and  they  are  hereby  autho- 
rized and  empowered,  from  time  to  time,  to  make  and  establish 
such  rules  and  regulations,  respecting  the  arrangement  and  station 
of  the  pilots,  and  respecting  the  rates  of  pilotage,  as  to  them  shall 
seem  most  advisable  and  advantageous,  for  the  navigation  of  said 
river  ;  and  shall  and  may  lay  and  impose  reasonable  fines  and 
penalties,  for  the  purpose  of  enforcing  the  execution  of  such  rules 
and  regulations  ;  and  all  fines  annexed  to  said  rules  and  regulations 
shall  and  may  be  recoverable,  before  any  justice  of  the  peace  of 
New  Hanover  county,  or  any  commissioner  of  navigation,  in  the 
name  of  the  board  of  commissioners,  who  are  hereby  authorized 
to  warrant  therefor,  and,  when  recovered,  shall  be  applied  to  the 
repair  of  the  public  wharves  and  docks,  and  improvement  of  the 
channel  of  said  river  :  Provided,  that  any  person,  considering  him- 
self aggrieved  by  such  judgment,  may  appeal  to  the  next  court  of 
pleas  and  quarter  sessions  of  New  Hanover  county,  first  giving 
security  for  prosecuting  the  appeal,  in  like  manner  as  is  directed 
bylaw  upon  other  appeals  from  justices  of  the  peace. 

4.  The  said  commissioners  shall  and  may  appoint  a  harbor  mas- 
ter for  the  port  of  Wilmington,  and  prescribe  the  duties  of  his 
office,  VAdio  shall  be  entitled  to  receive  from  the  master  of  each 
vessel,  that  shall  enter  said  port,  the  sum  of  one  dollar. 

5.  The  commissioners  of  pilotage  for  the  bars  and  rivers  of 
Cape  Fear,  or  a  majority  of  them,  are  hereby  authorized  and  em- 
powered from  time  to  time,  to  examine  as  many  persons  as  shall 
ofier  themselves  to  be  pilots  for  Cape  Fear  river  aforesaid,  and, 
on  approving  any  such  person  to  be  a  pilot,  shall  give  to  such 
person  a  commission,  under  their  hands  and  seals,  to  act  as  a  pilot 
for  the  bars  and   rivers,  according  as  they  shall  find  him  quahfied. 

6.  Every  such  person,  before  he  obtains  a  commission  or  a 
branch  to  be  a  pilot,  shall  give  bond  with  two  sufficient  securities, 
payable  to  the  State  of  North  Carohna,  in  the  sum  of  five  hundred 
dollars,  with  condition  for  the  due  and  faithful  discharge  of  his 
office,  which  bond  shall  be  filed  with,  and  preserved  by,  the  said 
board  of  commissioners,  in  trust  for  such  person  or  persons  as  shall 
appear  to  be  injured  by  such  pilot,  and  the  person,  so  injured, 
may  bring  suit  on  such  bond,  in  the  name  of  the  State,  and  re- 
cover the  damage  by  him  sustained,  and  the  bond  shall  not  be  void 
upon  the  first  recovery,  or  if  judgment  be  rendered  for  the  defend- 
ant, but  may  be  put  in  suit  from  time  to  time  by  any  person,  who 
shall  be  injured  by  a  breach  of  its  conditions,  until  the  whole  pen- 
alty shall  be  recovered. 

7.  Upon  the  misbehavior  of  any  pilot  in  his  office,  the  said 
commissioners,  or  a  majority  of  them,  shall  be,  and  they  are  hereby 
authorized  to  remove  such  pilot  from  his  office,  by  a  note  in 
writing,  directed  to  him  and.  subscribed  by  them,  and  to  appoint 
another  in  his   stead,  in  manner   aforesaid,  and  the  commissioners 


3.  1786,  c.  262,  s.  2.— 1802,  c.  626,  s  4. 

4.  1802,  c.  626,  s.  5. 

5.  1784,  c  207,  s.  2. 

6.  17S4,  C.  207,  s.  3. 

7.  1784,  c.  207,  s.  4. 


Chap.  LXXXVIII.]        pilots.  463 

shall  put  up  notice  in  writing,  in  all  public  places  within  the  said 
port,  or  publish  in  some  convenient  newspaper,  that  such  pilot  is 
removed.  ' 

8.  If  any  person,  not  authorized  as  a  pilot   for  Cape  Fear,  in  Penalty  on 
manner  as  by  this  act  directed,  shall  assume  and  take  upon  himself  P^""*?'^®,""' '^'i' 

rr-  r     ^^  1     1     11  1     •  1     •  •  1  "I  ttionzed  as 

the  oiBce  oi  pilot,  and  shall  brmg,  or  attempt  to  brmg,  nito  the  said  pilots  for  acting 
river  any  vessel  whatever,  such  person   shall  forfeit  and  pay  the  ^^  *"'^'^- 
sum  of  forty  dollars,  to   be  recovered  by  action  of  debt,  one  half 
to  the  person  who  shall  sue  for  the  same,  and  the  other  half  to  the 
commissioners  of  navigation  for  said  river  :   Provided  always^  that  Proviso, 
it  shall  be  lawful  for  any  person  to  conduct  into  the  port  of  Bruns- 
wick any  vessel,  in  danger  from  distress  of  weather,  or  in  a  leaky 
condition,  any  thing  herein  to  the  contrary  notwithstanding. 

9.  The  said  commissioners  of  navigation,   a  majority  of  whom  Commissioners 
may  form  a  board,  shall  have  power  and  authority  to  hear  and  de-  ^°{[;*s*^b^t^veeri 
cide  in  all  matters  of  dispute  between  any  pilot  and  master  of  a  ves-  masters  and 
sel,  or  between  the  pilots  themselves,  respecting  the  pilotage  ofP'^"*^^- 
vessels,  and  any  one  of  said  commissioners   may  issue  a  warrant 

against   any  master  of  a  vessel,  for  the  recovery  of  any  pilotage, 
and  against  any  pilot  for  the  recovery  of  any  demand,  one  pilot  may 
have  against  another  relative  to  pilotage,  and   for  the  recovery  of 
any  forfeiture  or  penalty,  incurred  by  any  act  of  the  General  As- 
sembly for  regulating  the  pilotage  of  Cape  Fear  river,  which  war- 
rant shall  be  directed  to  the  sheriff  or  any  constable  of  New  Han- 
over county,  who  are  hereby  respectively  directed  and  enjoined  to 
obey  and  execute  the  same,  and  all  other  process  authorized  by  this 
act,  and  on  any  warrant,  issued  as  aforesaid,  any  one   of  the  said 
commissioners  may  give  judgment  for  any  sum,  not  exceeding  sixty 
dollars,  and  may  issue  execution  thereon,  in  the  usual  manner  of 
issuing  execution  on  judgments   given  by  justices  of  the  peace  ; 
and  any  execution,  so  issued,  shall  and  may  be  levied  and  satisfied, 
agreeably  to  the  rules  and  regulations  prescribed  for  the  levy  of 
and  sale  under  other  executions,  issuing  under  judgments  had  be- 
fore justices   of  the   peace   as   aforesaid  ;  and  any  commissioner, 
before  whom  any  warrant  is  tried,  shall  have  power  and  authority 
lo  summon  witnesses,  and  administer  an  oath,  under  the  rules  and 
regulations  prescribed  by  law  in  cases  of  trials  before  justices  as 
aforesaid. 

10.   If  any  Cape  Fear  pilot  shall  obtain  a  judgment  before  any  No  stay  of  ex- 
justice  of  the  peace,  or  before  any  commissioner,  against  any  mas-  ecuuon  allow- 
ter  of  a  vessel  for  pilotage,  compensation  or  detention,  or  against  peal  may  be 
any  other  pilot  for  any  forfeiture  or  penalty,  payable  to  him  by  any  '^'^'^"^• 
act  of  the  General  Assembly,  or  if  any  master  of  a  vessel  shall  ob- 
tain any  judgment,  as  aforesaid,  against  any  such  pilot  for  any  for- 
feiture or  penalty,  made  payable  to  him  by  any  law  of  this  State, 
there  shall  be  no  stay  of  execution  :   Provided  ahoays,  that  if  any 
party  shall  consider  himself  aggrieved  by  any  judgment  as  afore- 
said, he  may  appeal  to  the  ensuing  court  of  pleas  and  quarter  ses- 

8.  1784,  c.  207,  s.  7. 

9.  1802,  c.  62G,  s.  2. 

10.  1S02,  c.  626,  s.  3. 


464 


PILOTS.        [Chap.  LXXXVIII. 


Notice  to  be 
given  when  the 
rates  of  pilot- 
age are  altered. 


Commissioners 
to  prescribe  the 
number  of 
boats  for  pilots. 


Rights  of  pilots 
as  to  the  Main 
and  New  Inlet 
bars  of  Cape 
Fear. 


Pilots  to  keep 
apprentices. 


Penalty  on 
pilots  for  not 
attending  when 
requested. 


sions  of  New  Hanover  county,  but  if  any  judgment  given  against 
any  defendant  shall  be  affirmed  in  the  county  court,  and  it  shall  be 
the  opinion  of  the  said  court  that  the  said  appeal  was  prayed  for 
and  obtained  for  the  purpose  of  delay,  the  said  court  shall  order 
and  adjudge  the  said  defendant  to  pay,  at  the  rate  of  twenty  per 
cent,  on  the  amount  of  the  original  judgment,  which  shall  be  added 
thereto,  and  execution  shall  and  may  issue  for  the  whole  amount, 
as  in  other  cases  of  judgments  in  said  court. 

11.  When  the  commissioners  of  navigation  for  Cape  Fear  shall 
make  any  alteration  in  the  rates  of  pilotage,  they  shall  cause  such 
rates  to  be  set  up  in  the  office  of  the  collector  of  the  port,  and 
shall  also  cause  the  same  to  be  certified  under  their  hands,  and  an- 
nexed to  the  several  pilots'  branches. 

12.  The  commissioners  aforesaid  shall  have  power,  and  they 
are  hereby  authorized  and  required,  to  make  known  and  determine, 
as  far  as  occasion  may  require,  to  the  pilots  of  the  Main  and  New 
Inlet  bars,  how  many  decked  boats  are  necessary  for  the  attendance 
on  them  respectively,  in  which  decked  boats  any  number  of  said 
pilots,  not  exceeding  three,  may  act  and  be  concerned  as  partners 
and  joint  owners. 

13.  The  pilots,  now  having  branches  or  commissions,  or  who 
may  hereafter  have  branches  or  commissions,  to  pilot  over  the  Main 
bar,  or  New  Inlet  bars  of  Cape  Fear  river,  shall  be  entitled  to  pilot 
and  navigate  vessels  into  port  over  either  bar,  and  the  pilot,  w^ho 
shall  bring  a  vessel  into  port  over  either  bar,  shall  be  entitled  ex- 
clusively to  navigate  the  same  vessel  out  of  port  over  either  bar  : 
Provided  always,  when  any  vessel  shall  be  ready  to  go  out  of  port, 
and  such  pilot,  so  exclusively  entitled,  does  not  attend  to  navigate 
the  said  vessel  out  of  port,  the  captain  or  master  of  such  vessel 
may  employ  any  other  pilot  to  navigate  such  vessel  out  of  port  : 
Provided,  such  other  pilot,  so  by  the  captain  or  master  to  be  em- 
ployed, shall  be  a  branch  or  commissioned  pilot  for  the  bar  over 
which  such  vessel  is  to  be  navigated  out  ;  and  every  pilot,  who 
shall  navigate  a  vessel  out  of  port  contrary  to  the  meaning  of  this 
section,  shall  for  every  such  offence  forfeit  and  pay  the  sum  of 
forty  dollars,  to  be  recovered  before  any  jurisdiction  having  cog- 
nizance thereof,  to  the  use  of  the  pilot  or  pilots,  who  by  this  act 
would  have  been  entitled  to  navigate  said  vessel  out  of  port. 

14.  Each  and  every  pilot  of  the  said  river,  shall  keep  at  least 
one  apprentice,  and  instruct  him  in  the  art  and  mystery  of  a  pilot, 
and  each  of  the  said  pilots  may  keep  two  apprentices  and  no  more, 
which  said  apprentices,  upon  being  authorized  by  a  majority  of 
said  commissioners,  may  pilot  any  vessel,  which  their  several  mas- 
ters are  entitled  to  pilot,  for  the  behoof  and  emolument  of  their 
said  masters,  without  let  or  molestation,  subject  however  to  the 
same  regulations  as  the  said  pilots  are. 

15.  When  any   pilot  of  said  river  shall  have  notice  from  the 

11.  1796,  c.  470,  s.  5. 

12.  1796,  c.  470,  s.  3. 

13.  1797,  c.  486,  s.  1. 

14.  17S6,  c.  262,  s.  4. 

15.  17S4,  c.  207,  s.  5.— 1796,  c.  470,  s.  4. 


Chap.  LXXXVIIL]         pilots.  465 

master  of  any  vessel,  or  other  person  in  his  behalf,  to  attend  in 
piloting  such  vessel,  and  shall  not  go  on  board  for  that  purpose 
without  delay,  the  pilot  having  such  notice  shall  forfeit  and  pay  the 
sum  of  ten  dollars,  (unless  he  shall,  at  the  time  of  such  notice, 
have  the  actual  and  personal  charge  of  some  other  vessel,)  for  each 
and  every  day's  delay  of  the  vessel  which  he  had  notice  to  attend, 
by  reason  of  such  pilot's  neglect,  to  be  recovered  by  a  warrant 
under  the  hand  of  any  one  of  the  commissioners,  on  oath  being 
made  of  the  fact,  (which  oath  any  of  the  commissioners  is  hereby 
authorized  to  administer,)  and  to  be  paid  to  the  master  or  owner 
of  the  vessel  so  detained  or  delayed  :  Provided,  that  no  bar  pilot  Proviso  as  to 
shall  be  considered  as  obliged  to  take  charge  of  any  vessel_  out-  =^'-pii°ts. 
ward  bound,  in  order  to  pilot  her  over  ehher  of  the  bars,  until  the 
pilotage,  to  which  such  pilot  might  or  would  be  entitled  for  such 
service,  be  previously  paid  him,  or  satisfactory  security  for  the 
payment  thereof  be  given  him. 

16.  If  the  master  of  any  vessel  shall  send  for,  or  take  on  board.  Masters  to  pay 
any  pilot  to  conduct  such  vessel  from  her  station  to  any  other  place  V^^^^l'^'  ^^- 
in  the  said  river,  and   shall  afterwards  neglect  or  delay  to  remove 

such  vessel,  (wind  and  weather  permitting,)  such  master  shall  pay 
unto  the  pilot  one  dollar  for  attending  each  and  every  day  he  shall 
be  so  detained  ;  and  if  any  vessel,  which  shall  be  boarded  by  a 
pilot  without  the  harbor,  should  happen  to  be  blown  ofFto  sea  by 
the  violence  of  the  weather,  the  pilot  on  board  such  vessel  shall 
also  be  entitled  to  receive,  from  the  master  thereof,  one  dollar  for 
every  day  he  shall  be  at  sea,  until  the  said  vessel  shall  be  brought 
into  port,  which  sum  such  master  is  hereby  required  to  pay. 

17.  When  any  Cape  Fear  branch  pilot  shall  see  a  vessel  on  the™^"';^. 
coast,  having  a  signal  for  a  pilot,  or  shall  hear  a  gun  or  guns  fired  fusing  omeg- 
off  the  coast,  and  shall  refuse  or  neglect  to  go  to  the  assistance  of  ™\?J°f°^° 
such  vessel,  such  pilot  shall,   on   conviction,   forfeit   and  pay  the  ing  a  signal, 
sum  of  forty  dollars,  to  be  recovered  by  action  of  debt  in  any  court 

of  record  in  this  State,  the  one  half  to  the  informer,  the  other  half 
to  the  master  of  such  vessel ;  and  such  pilot  so  refusing  or  neg- 
lecting may,  upon  due  proof  being  made  before  the  commissioners 
of  navigation,  be  removed  by  them  from  being  a  branch  pilot. 

18.  When  any  master  of  a  vessel  shall  refuse  a  pilot  jo _  come  Pjlg^^^  entrd^^^^^^ 
into,  or  up  the  Cape  Fear  river,  or  in  any  part  of  the  said  river  to  though  the 
go  out  of  either  of  the  inlets,  then  each  pilot,  so  refused,  shall  bemas^ter-fu^e 
entitled  to  the  full  pilotage,   in  the  same  manner  as  he  would  have 

been,  had  he  been  actually  employed  for  the  purpose  of  piloting 

such  vessel.  i         i     r  -l       When  pilots 

19    When   any  vessel  shall  come  over  the  bar  belore  a  pilot  entitled  to  only 
boards  her,  she  shall  pay  only  one  third  fees  for  coming  in,  unless  0"^  third  fees, 
when  it  may  happen   the   weather   is  so  bad,   that  no   person   can 
board  a  vessel ;  in  which  case,  if  he  shall  hail  her  without  the  bar, 
he  shall  be  entitled  to  full  fees. 


16.  1784,  c.  207,  s.  6. 

17.  1784,  c.  207,  s.  10.— 1790,  c.  320,  s.  2. 

18.  1784,  c.  207,  S.  8. 

19.  1786,  C.  262,  s.  6. 

VOL.  I.  59 


466 


PILOTS.         [Chap.  LXXXVIII. 


Rate  of  charge 
when  vessel 
deepens  or 
lightens. 


Bar  pilots  to 
have  a  tel- 
escope or  spy 
glass. 


What  vessels 
exempt  from 
pilotage. 


Throwing  bal- 
last, &c.  into 
the  river  pro- 
hibited. 


Penalty  on 
captain  of  a 
vessel  from 
which  ballast 
is  so  thrown. 


Duty  and 
power  of  the 
commissioners 
in  this  respect. 


Penalty  on 
branch  pilots 


20.  If  any  vessel  deepens  or  lightens  between  Wilmington  and 
the  flats,  between  the  flats  and  Brunswick,  or  between  Brunswick 
and  fort  Johnston,  the  pilot  shall  be  paid  for  the  greatest  draught 
of  water,  and  shall  besides  be  entitled  to  demand  at  the  rate  of  one 
dollar  and  twentyfive  cents  per  day,  for  every  day  he  may  be  de- 
layed in  loading  or  unloading  such  vessel,  in  which  no  fraction  or 
part  of  a  day  shall  be  allowed  or  deducted. 

21 .  Each  Cape  Fear  bar  pilot  shall,  within  such  convenient  time 
as  the  said  commissioners  shall  direct,  furnish  himself  with  a  good 
telescope  or  spy  glass,  under  such  penalty  as  the  commissioners 
shall  think  proper,  and  such  spy  glass  shall  always  be  taken  in  the 
boat  when  the  pilot  goes  out  to  sea. 

22.  No  vessel  or  boat,  entering  Cape  Fear  river,  either  by  the 
old  bar  or  the  new  inlet,  under  forty  tons  burden,  shall  be  com- 
pelled to  take  a  pilot,  or  pay  pilotage  to  any  person  whatever,  ex- 
cept where  signals  are  made  for  a  pilot ;  and  no  vessel  coming  in 
at  either  of  the  said  inlets,  with  a  view  to  the  more  convenient 
prosecution  of  her  voyage,  or  to  make  a  harbor,  shall  be  subject  to 
the  payment  of  pilotage. 

23.  It  shall  not  be  lawful  for  any  master  of  a  vessel  or  other 
person  to  throw  any  stone,  earth  or  ballast  or  other  thing,  which 
can  be  injurious  to  the  navigation  of  said  river,  into  the  same, 
within  seven  miles  of  the  town  of  Wilmington,  except  it  be  at  such 
place  as  may  be  designated  by  the  commissioners  of  navigation  and 
pilotage  of  Cape  Fear  river  ;  and  any  person,  guilty  of  a  violation 
of  this  section,  shall  be  liable  to  an  indictment  in  the  county  or 
superior  court  of  law  of  New  Hanover  county,  and,  on  conviction 
thereof,  shall  be  punished  by  fine  and  imprisonment  or  either  at 
the  discretion  of  the  court. 

24.  The  captain,  master  or  commander  of  any  vessel,  from 
which  any  stone,  earth  or  other  ballast  or  any  other  thing,  which 
can  be  injurious  to  the  navigation  of  said  river,  may  be  thrown, 
contrary  to  the  provisions  of  the  preceding  section,  shall  forfeit  and 
pay  the  sum  of  two  hundred  dollars,  to  be  recovered,  in  the  name 
of  the  commissioners  of  navigation  and  pilotage  of  Cape  Fear  river 
for  the  time  being,  by  action  of  debt  in  the  superior  court  of  law 
of  New  Hanover  county,  one  half  to  the  use  of  the  informer,  and 
the  other  half  to  the  use  of  the  said  commissioners,  for  the  improve- 
ment of  the  navigation. 

25.  It  shall  be  the  duty  of  the  commissioners  for  the  time  being 
to  enforce  these  penalties  ;  and  all  the  powers  and  authority,  now 
vested  in  the  commissioners  of  pilotage  and  navigation  of  Cape 
Fear  river  below  Negrohead  point,  shall  be  and  remain  in  said 
commissioners,  and  shall  extend  up  both  branches  of  said  river 
seven  miles  above  said  point. 

26.  If  any  branch  pilot  of  Cape  Fear  river  shall  knowingly  suf- 


20.  1790,  c.  320,  s.  1. 

21.  1790,  c.  320,  s.  3. 

22.  1813,  c.  866.— 1831,  c.  65.- 

23.  1833,  c.  146,  s.  1  and  2. 

24.  1833,  c.  146,  s.  3. 

2.5.  1833,  c  146,  s.  4  and  5. 
26.  1784j  c.  207,  s,  11. 


-1823.  c.  1222,  s.  land  2. 


Chap.  LXXXVIII.]  pilots.  467 

fer  any  kind  of  ballast  or  trash,  to  be  thrown  out  of  any  vessel  into  for  not  inform- 
any  part  of  the  channel  of  the  said  river,  and  shall  not,  within   ten  JaftTs  thrown 
days  after  the  commission  of  such  offence,  make  information  there-  into  the  river. 
of  to  one  or  more  of  the  commissioners  of  pilotage,  such  pilot  shall, 
upon  conviction,  be  forever  rendered  incapable  of  acting  as  a  pilot 
for  the  said  river  or  any  part  thereof. 

27.  Five  commissioners  of  navigation,  for  each  of  the  ports  of  Commissioners 
Nevvbern,  Washington  and  Edenton,  shall  annually  be  chosen  by  ^^",^^^^^3^^^^ 
the   freemen  of  the  said  towns  respectively,   entitled  to  vote  for  Washington 
commissioners  of  their  towns,  at  the  same  time  and  in  the  same  ^  appointed.  ° 
manner  that  commissioners  of  the  said  towns  are  respectively  elect- 
ed :   Provided,  that  no  person  shall  be  eligible  as  a  commissioner 

of  navigation,  in  either  of  the  said  towns,  unless  he  be  a  resident  of 
such  town  and  possessed  of  a  freehold  within  the  same. 

28.  The  said  commissioners  shall  have  power  to  contract  with  P°^^''.°(^"^'^ 

~  .  .  ^         ,         .         .  f.   ,      commissioners. 

proper  persons  to  examme,  irom  time  to  tune,  the  situation  oi  the 
Swash,  and  keep  the  same  and  all  other  channels,  leading  from 
Ocracock  bar  to  Newbern,  Washington,  Edenton,  Plymouth  and 
Elizabeth  city,  well  and  sufficiently  staked  out,  and  to  cause  buoys 
and  beacons  to  be  placed,  where  the  said  commissioners  shall  think 
most  convenient  for  the  safety  of  vessels. 

29.  Levin  Burress  and  WiUiam  B.  Quidley,  of  cape  Hatteras  ;  Board  of  com- 
Joseph  Williams,  Benjamin  Gaskins  and  George  Hobbs,  of  Ocra- J^j£°%'/P- 
cock  ;  Alpheus  Whitehurst  and  Valentine   Robertson,   of  Ports-  Ocracock. 
mouth,  shall  be  a  board  of  commissioners  for  the  port  of  Ocracock,  ^gardto  mlots. 
whose  duty  it  shall  be  to  meet  at   Ocracock,  at  least  three  times 

in  each  year,  or  a  majority  of  them,  after  giving  at  least  twenty 
days'  notice  of  each  meeting,  and  when  any  person  is  desirous  of 
becoming  a  pilot  at  Ocracock  bar,  and  the  Swashes,  and  through 
Pamlico  and  Albemarle  sounds,  he  shall  be  examined  by  said 
board  ;  and  such  person,  being  so  examined  and  found  competent 
to  take  charge  of  any  ship  or  vessel,  as  a  pilot,  the  board  aforesaid 
shall  issue  to  him  a  branch,  and  receive  the  bond  with  security, 
under  the  rules  and  regulations  prescribed  by  law  ;  and  no  person 
shall  be  authorized  to  act  as  a  bar  or  swash  pilot,  unless  he  shall 
have  a  branch  from  said  board  ;  the  said  board  shall  keep  an  of- 
fice at  Ocracock,  in  which  shall  be  filed  the  bonds  of  the  pilots  ; 
and  every  pilot,  receiving  from  said  board  a  branch,  shall  pay  to 
the  said  board  two  dollars  and  fifty  cents,  of  which  sum,  those  liv- Their  compen- 
ing  on  Portsmouth  and  cape  Hatteras,  shall  receive  ten  cents  per 
mile  travelling  to  and  from  the  meeting  of  said  board,  and  the  bal- 
ance shall  be  divided  between  all  the  members  of  said  board  : 
when  a  vacancy  shall  occur  in  said  board,  by  death,  resignation  or 
refusal  to  act,  a  majority  thereof  shall  appoint  some  suitable  person 
to  fill  said  vacancy,  whose  residence  shall  be  at  the  same  place 
where  the  vacancy  occurred  ;  and  said  commissioners  shall  keep  a  ^ 
regular  journal  of  tlieir  proceedings  ;  and  before  the  said  commis- 
sioners enter  on  the  duties  of  their  office,  they  shall  take  and  sub- 

■27.  1783,  c.  104  — ISOl,  c.  000. 
2S.  V/.<i,  c.  194,  s.  1  and  2. 
29.  Amendment. 


468 


PILOTS.  [Chap.  LXXXVIII. 


Sien Cthem  ^^        '  ^®^°^®  ^"^  J"^^^^®  °^  ^^^  P^^^^  °f  ^^^^  counties  of  Carteret 

•  and  Hyde,  or  before  the  collector  of  the  port  of  Ocracock,  the 

following  oath  :   "  I  do  solemnly  swear,  that  I  will  truly,  faithfully 

and  impartially  examine  every  person  who  shall  apply  to  me  for 

a  branch,   to  the  best  of  my  ability:  so  help  me  God."     The 

branches  shall  expire  in  three  years  from  the  date  thereof. 

SfbrcoS        ^°-   ^^^  vessels,  not  owned  by  citizens  of  this  State,  nor  hailing 

pelled  to  take  a  from  a  ])ort  of  this  State,  and  over  forty  tons  burden,  shall  be  com- 

pilot.  pelled  to  take  a  pilot,  from  the  first  of  October  to  the  first  of  April. 

EcompetTnf  ""^     •^^'  ^^®"  ^"^  P^!°^'  ^^"  ^^^^^^  ^"  examination  under  the  afore- 
his  branch  '     s^id  board,  and  receives  a  branch,  is  afterwards  found  incompetent, 
TOk^ed^  "*■       ^y  intoxication  or  otherwise,  to  perform  the  duties  of  a  pilot,  the 
commissioners  aforesaid  shall  have  power  to  revoke  said  branch, 
and  from  that  time  such  pilot  shall  be  disqualified  from  any  further 
exercising  the  business  of  a  pilot. 
Commissiouers      32.   The  court  of  pleas  and  quarter  sessions  of  Carteret  countv, 
for  Old  Top-    a  majority  ot  the  justices  being  present,  shall,  annually  at  the  first 
sail  inlet.         term  after  the  first  day  of  May,  appoint  five  commissioners  of  ;iav- 
igation  for  Old  Topsail  inlet  and  the  waters  thereof,  and  the  court 
For  Bogue       p^  P^eas  and  quarter  sessions  of  Onslow  county,  a  majority  of  the 
inlet.  justices  being  present,  shall  appoint,  at  the  first  term  after  the  first 

day  of  May  annually,  five  commissioners  of  navigation  for  Bogue 
inlet  and  its  waters  ;  and  the  said  commissioners  shall  have  the 
same. powers  and  authorities,  with  regard  to  the  pilots  and  pilotage 
Their  duty  of  Old  Topsail  inlet  and  its  navigation,  and  Bogue  inlet  and  its 
navigation,  respectively,  and  as  to  staking  out  their  respective 
channels^^nd  the  placing  of  buoys  and  beacons,  as  are  given  to 
the  commissioners  of  navigation  for  the  ports  of  Newbern,  Wash- 
ington and  Edenton. 

^flotin^  Sith  ^^'  ^^  ^"-^^  person  shall  pretend  to  pilot,  or  take  charge  of  any 
oit°a  blanch.'  ^hip  or  vessel,  without  having  passed  an  examination  as  aforesaid, 
and  obtained  a  certificate  for  so  doing,  and  also  giving  bond  as 
hereafter  directed,  he  shall  forfeit  and  pay  for  each  and  every 
offence. the  sum  of  two  hundred  dollars,  to  the  use  of  any  person 
suing  for. the  same. 

SvenVy  pUots  ^  ^^^  ^"  P'^°^^  appointed  by  the  commissioners  of  navigation 
for  Newbern,  Washington,  Edenton,  Ocracock,  Old  Topsail  and 
Bogue  inlets  shall  give  bond,  with  sufficient  securities,  for  the 
amount  and  in  the  manner  prescribed  for  the  bonds  of  the  Cape 
Fear  pilots,  in  'section  sixth  of  this  act,  and  subject  to  the  same 

CommisMoners^"^^^'  ^®§"^^^^°"^  ^"^  "§^i<^  of  recovery  as  are  there  prescribed. 
of°^gati'oT\  ^^-  The  commissioners  of  navigation,  or  a  majority  of  them, 
mayjemove  in  the  respective  ports  of  this  State,  upon  complaint  being  made 
FenSty  for  ^°  ^^^ir  satisfaction  of  the  improper  conduct  of  any  pilot,  acting 
actine  after  re- under  their  authority,  shall  have  full  power  to  disquahfy  such  pilot 
"""^^  •  from  piloting  thereafter,  and  should  such  pilot,  after  such  disqual- 

30.  Amendment. 

31.  1819,  c.  102S,  s.  4. 

32.  1783,  c  194.— 1784,  c.  208,  S.  2. 

33.  1783,  C.  194,  s.  3.— 1784,  C.  203,  S.  4. 

34.  1783,  c.  194,  s.  4. 

35.  1800,  c.  565. 


Chap.  LXXXVIIL]  pilots.  469 

ification,  attempt  to  take  charge  of  any  vessel,  he  shall  be  subject 
to  the  penalty  of  two  hundred  dollars,  to  be  recovered  in  the  same 
manner  as  if  he  had  never  obtained  license  for  so  doing. 

36.  When  any  branch  pilot   shall   see  any  vessel  on  the   coast,  Penalty  on 
having  a  signal  for  a  pilot,  and  shall  neglect  or  refuse  to  go  to  the  fusing  to  "■o  to 
assistance  of  such   vessel,    on    proper  proof  being  made  of  such  ^^ '^^ssei  having 
neglect  or  refusal,  he  shall  forfeit    the  sum  of  forty  dollars,  to  be 
recovered  by  action  of  debt  before  any  competent  jurisdiction,  the 

one  half  to  the  informer,  and  the  other  half  to  the  master  or  owner 
of  said  ship  or  vessel. 

37.  If  any  ship    or   vessel,  coming  into  any  of  the   inlets    and  Pilot's  pay  if 
taking  a  pilot  on  board,  shall  be,  by  contrary  winds  or  otherwise,  coal^'^after^^^ 
driven  off  the    coast,  the   master  or  owner  of  such    vessel    shall  boarding. 
allow  and  pay  the  said  pilot  one  dollar  per  day,  for  each  and  every 

day  he  shall  be  on  board  the  said  vessel,  over  and  above  the  pilot- 
age. 

38.  If  a  branch   pilot  shall  go   off  to  any  vessel  bound  in,  and  pilots  entitled 
offer  -to  j)ilot  her  over  the  bar,  the    master  or  commander  of  such  ^°  be^paid  if 
vessel,  if  he  refuses  to  take  such  pilot,  shall  pay  and  satisfy  to  such  a vess^el,  though 
pilot,  if  not  previously    furnished   with  one,  the    same    sum    as  is*^®  ""f_^*^{"^i'l 
allowed  by  law  lor  conductmg  such  vessel  m. 

39.  No  pilot,  acting  under  the  authority  of  the  commissioners  No  pilotage  on 
of  navigation  for  Newbern,  Edenton,  Washington  or  Old  Topsail  H^^onl  ^^'^^'^ 
inlet,  shall  be  entitled  to  pilotage  for  any  vessel  under   sixty  tons  bm-then. 
burthen,  unless  such  vessel  shall  have  given  a  signal  for  a  pilot,  or 
otherwise  shall  have  required  the  assistance  of  a  pilot. 

40.  All  branch  pilots,  legally  authorized  by  the  commissioners  Rates  of  pilot- 
of  navigation  for   Edenton,  Washington,  Newbern,  or  Ocracock,  OCTacock^*^ 
shall  be  entitled  to  demand  and  receive  of  the  commander  of  such  pilots, 
vessel,  as  they  may  have  charge  of,  the    following    pilotage,  viz  : 

For  every  vessel  of  sixty  tons  burthen,  from  ihe  other  side  of  the 
bar,  at  any  distance  within  the  limits  of  the  pilot  ground,  to  Bea- 
con island  road  or  Wallace's  channel,  six  dollars  ;  and  for  all  ves- 
sels drawing  eight  feet  water  and  less  than  twelve,  one  dollar  per 
foot ;  and  for  all  vessels  drawing  twelve  feet  or  upwards,  one  dol- 
lar and  twentyfive  cents  per  foot  ;  and  two  dollars  for  each  vessel 
over  either  of  the  Swashes  ;  and  for  every  ship  or  vessel,  from 
the  mouth  of  the  Swash  to  either  of  the  ports  of  Newbern  or 
Washington,  drawing  any  draft  of  water,  one  dollar  per  foot,  and 
for  every  ship  or  vessel  from  the  mouth  of  the  Swash  to  the  port 
of  Edenton,  twelve  dollars,  and  to  the  port  of  Elizabeth  City,  ten 
dollars  ;  and  the  same  allowance  down  as  up,  aud  outwards  as 
inwards. 

41.  The  branch  pilots  for  Old  Topsail  inlet  shall  be  entitled  to  Rates  at  Old 
demand  and  receive  of  the    commanders  of  such  vessel,  as    they  topsail  mlet. 
may  have  charge  of,  the  following  pilotage,  to  wit  :  for  every  ves- 

36.  1783,  c.  194,  s.  6. 

37.  1783,  c.  194,  s.  6.— 1784,  c.  207,  s.  7. 

38.  1794,  c.  426,  s.  2. 

39.  1801,  c.  600,  s.  3.— 1806,  c.  711,  s.  1. 

40.  1806,  c.  711.— 1794,  C.  426. 

41.  1798,  c.  515.  — 1794,  c.  420.-1806,  c.  711. 


470 


PILOTS. 


[Chap.  LXXXVIII. 


Rates  for 
Bogue  inlet. 


Rates  of 
pilotage  to  be 
annexed  to  the 
branches. 

No  slave  to  act 
as  pilot  over 
any  bar. 


Penalty  for 
throwing  bal- 
last into  any 
channel. 


How  penalties 
and  fines  to  be 
disposed  of. 


sel  of  sixty  fons  burthen  from  the  outsde  of  the  inlet,  at  any 
distance  within  the  limits  of  pilot  ground,  into  Bogue  road  or 
Shacklesford  road,  at  the  option  of  the  commander,  six  dollars  ; 
and  for  all  vessels  drawing  eight  feet  water  and  less  than  twelve, 
one  dollar  per  foot  ;  and  for  all  vessels  drawing  twelve  feet  and 
upwards,  one  dollar  and  twentyfive  cents  per  foot ;  and  the  same 
fees  for  piloting  outwards  as  inwards. 

42.  The  branch  pilots  for  Bogue  inlet  shall  be  entitled  to  de- 
mand and  receive  of  the  commander  of  such  vessel,  as  they  may 
have  charge  of,  the  following  pilotage,  to  wit :  for  bringing  any 
vessel  into  the  said  inlet,  drawing  less  than  seven  feet,  from  the 
outside  of  the  bar  to  the  anchorage  before  the  town,  or  the  cus- 
tomary place  in  Hill's  channel,  fifty  cents  per  foot ;  for  a  vessel, 
drawing  more  than  seven  feet,  seventy  cents  per  foot ;  and  the 
same  fees  for  pilotage  outwards  as  inwards. 

43.  It  shall  be  the  duty  of  the  commissioners  of  navigation  for 
the  several  ports  of  this  State,  to  annex  to  the  branch  or  certificate, 
by  them  given  to  each  pilot,  a  copy  of  the  fees  to  which  by  law 
such  pilot  is  entitled. 

44.  If  any  slave  or  slaves  shall,  with  the  consent  of  his  or 
their  owner,  and  not  accompanied  by  a  pilot,  go  off  to  any  ship  or 
vessel  for  the  purpose  of  bringing  such  ship  or  vessel  over  any 
bar  or  inlet  of  this  State,  or  shall  pilot  any  such  ship  or  vessel  out 
and  over  any  bar  or  inlet,  the  owner  of  such  slave  or  slaves  shall 
forfeit  the  value  of  such  slave  or  slaves,  to  be  recovered  in  any 
court  having  cognizance  thereof,  one  half  to  the  person  suing  for 
the  same,  the  other  half  to  the  use  of  the  county  where  the  owner 
resides. 

45.  No  master  or  other  person,  belonging  to  any  vessel  trading 
to  this  State,  shall  cast  or  throw  overboard,  into  any  channel  or 
river  within  this  State,  any  stones  or  other  ballast  whatsoever,  any 
oysters  or  oyster  shells,  under  the  penalty  of  two  hundred  dollars 
for  every :^jch  offence  ;  and  if  any  person  or  persons  shall  wilfully 
pull  down  any  beacon,  stake  or  other  mark,  erected  or  placed  in 
virtue  of  this  act,  he  or  they  shall,  for  every  such  offence,  forfeit 
and  pay  one  hundred  dollars  ;  and  such  penalties  shall  be  recov- 
ered by  the  commissioners  of  navigation  for  the  respective  ports, 
by  action  of  debt,  in  any  court  having  competent  jurisdiction. 

46.  All  penalties  and  fines,  recovered  by  the  commissioners  of 
navigation  under  this  act,  except  when  otherwise  herein  particu- 
larly directed,  shall  be  by  them  applied  to  the  placing  of  stakes, 
buoys  and  beacons,  and  otherwise  improving  the  navigation  leading 
to  their  respective  ports. 


42.  1792,  c.  372,  s.  2. 

43.  1784,  c  208,  s.  4. 

44.  1S12,  c.  339. 

45.  17S3,  c.  194,  s.  8. 

46.  17S3,  c.  194,  s.  10. 


Chap.  LXXXIX.] 


POOR. 


471 


l/Van'^l^i^^ 


CHAPTER  89. 

P  O  O  li. 


t^f^f'-y,    (^  ^<- 


AN  ACT  PROVIDING  FOR  THE  SUPPORT  OF  THE  POOR. 


Section 

1.  Wardens  of  the  poor  to  be  elected 

every   three  years — Sheriif's    duty 
and  penalty  for  failure. 

2.  How  the  elections  shall  be  conduct- 

ed. 

3.  Oaths  to  be  taken  by  wardens. 

4.  Penalty  on  wardens  refusing  to  qual- 

ify— Vacancies  to  be  filled  by  the 
remaining  wardens. 

5.  On  failure  of  election,  sheriff  to  ap- 

point another  day  of  election. 

6.  Place  of  meeting  of  wardens — Ap- 

pointment of  clerk. 

7.  Three  wardens  may  call  a  meeting — 

Penalty  on  sheriff  and  wardens  for 
neglect  of  duty. 

8.  Wardens  to  keep  minutes  and  accounts 

— To  publish  an  account  of  their 
receipts  and  expenditures  annually. 

9.  Tax  to  be  laid   by  the  county  courts 

on  application  of  the  wardens. 

10.  Sheriff  to  collect  and   account  to  the 

wardens. 

1 1 .  Wardens  to  settle  with  their  succes- 

sors. 

12.  County  courts  may  erect  poor  houses. 

13.  Poor  houses  to  be  under  the  direction 

of  the  wardens. 

14.  Property  of  wardens  exempt  from 

taxation. 


16. 
17. 


Section 
15.  County  courts  to  lay  taxes  for  the 
erection  of  poor  houses. 

What  shall  be  a  legal  settlement. 

How  paupers  coming  into  a  county 
may  be  removed— County  where 
last  legally  settled  to  pay  all  charg- 
es— Housekeepers  to  give  notice  of 
such  paupers  to  the  wardens. 

Wardens  to  support  the  families  of 
poor  militia  men  absent  on  ser- 
vice. 

Wardens  to  provide  for  infirm  slavey 
neglected  by  their  owners  and  may 
recover  from  the  owners — Owners 
to  have  previous  notice. 

Executors,  administrators  and  guar- 
dians liable  to  the  wardens  if  they 
neglect  to  provide  for  slaves  under 
their  care. 

Duty  of  the  wardens  when  the  owner 
lives  in  another  county. 

Two  wardens  may  act  in  the  case  of 
such  slave. 

Power  of  the  wardens  when  a  person 
having  infirm  slaves  is^about  to  re- 
move out  of  the  county. 

Stock,  &c.  belonging  to  slaves,  to  be 
seized  by  the  wardens. 

How  forfeitures  and  penalties  may 
be  recovered.     , 

6/r~ 


\i 


19. 


20. 


21. 


22. 


23. 


24. 


1.   Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted   by  the  authority  of  the  same, 
That  the   freemen,  in  each  and  every  county  m  this    State,  shall  Wardens  of  the 
meet  on  Easter  Monday,  three  years  from  the  last  election,  at  the  P,°°^ '?  ^^ 

-'  '  •'  '  elected  every 

court  house,  and  on  the  same  day  and  at  the  same  place  in  every  three  years. 
three  years  thereafter,  then  and  there  to  elect  seven  freeholders  to  g^gj-jipg  J^t„ 
serve  as  wardens  of  the   poor,  and  the   sheriff,  or  his   deputy,  is  and  penalty  for 
hereby  directed  to  set  up  an  advertisement  at  the  place  of  election  I'^il"'"'^- 
in  each  county,  appointing  a  day  for  the  meeting  of  the  wardens 
so   elected,  which  day  shall  not  be  less  than   ten,  nor   more  than 
thirty  days  after  the  election,  and  the  said  sheriff",  or  his  deputy, 


1.   1777,  c.  117,  s.  1.— 1783,  c.  191,  s.  3. 


472 


How  the  elec- 
tions shall  be 
conducted. 


Oaths  to  be 
taken  by 
wardens. 


Penalty  on 
wardens  re- 
fusing to  qual- 
ify. 


Vacancies  to  be 
supplied  by  the 
remaining 
wardens. 


On  failure  of 
election,  sheriff 
to  appoint 
anotner  day  of 
election. 


POOR.  [Chap.  LXXXIX. 

shall  also  summon  each  and  every  warden  to  meet  on  the  day  so 
appointed,  at  the  court  house,  to  be  qualified  according  to  the 
directions  of  this  act  ;  and  if  the  sheriff  shall  fail  to  appoint  and 
advertise  a  day  of  meeting  as  aforesaid,  and  shall  fail  to  summon 
each  and  every  warden  in  his  county  to  attend  on  such  day,  such 
sheriff  shall  forfeit  and  pay  the  sum  of  twenty  dollars,  for  the  de- 
fault first  mentioned,  and  the  sum  of  ten  dollars  for  every  warden 
not  summoned  as  aforesaid,  to  be  levied  and  appUed  as  hereinafter 
directed,  and  the  sheriff  shall  be  paid  by  the  county  the  sum  of 
thirty  cents  for  every  warden  he  shall  summon. 

2.  The  sheriff,  in  each  respective  county,  shall  advertise  at  the 
court  house  and  other  public  places,  the  day  of  holding  the  elec- 
tion of  wardens  of  the  poor,  at  least  ten  days  before  such  election, 
under  the  penalty  of  twenty  dollars  for  neglect,  and  the  elections 
of  such  wardens  shall  be  held  and  conducted  in  the  same  manner, 
and  under  the  same  regulations,  as  elections  of  the  members  of  the 
house  of  commons. 

3.  The  wardens  of  the  poor  so  elected,  shall,  at  the  first  meet- 
ing next  after  such  election,  take  before  some  magistrate  the  oath 
by  law  appointed  to  be  taken  by  public  officers,  and  shall  repeat 
and  subscribe  the  following  oath,  in  a  book  to  be  by  them  kept  for 
that  purpose,  viz  :  "  I,  A.  B.,  do  swear  that  I  will  honestly  and 
faithfully  discharge  my  office  as  warden  of  the  poor,  to  the  best  of 
my  skill  and  ability,  according  to  law."  And  every  warden,  so 
elected  and  qualified,  shall  be  deemed  and  taken  to  be  a  warden  of 
the  poor,  in  the  county  for  which  he  was  elected,  for  three  years. 

4.  Every  person,  elected  a  warden  of  the  poor  according  to 
this  act,  who  shall  refuse  or  neglect  to  quahfy,  as  aforesaid,  on 
notice  from  the  sheriff,  shall  forfeit  and  pay  the  sum  of  tweiity 
dollars,  to  be  sued  for  and  recovered  in  any  court  of  record,  by 
the  chairman  of  the  county  court,  in  an  action  of  debt,  and  the 
money  so  recovered  to  be  applied  to  the  use  of  the  county  ;  and 
where  a  person  elected  shall  so  refuse  or  neglect,  or  when  a 
warden  of  the  poor  shall  die,  or  remove  out  of  the  county  for 
which  he  was  elected,  the  remaining  wardens,  or  a  majority  of 
them,  shall  elect  one  or  more  freeholders,  instead  of  him  or  them 
so  neglecting  or  refusing,  dying  or  removing  out  of  the  county, 
and  persons  so  chosen  shall  be  subject  to  the  same  penalty  for 
refusing  or  neglecting  to  qualify,  and,  when  qualified,  shall  in  all 
respects  have  the  same  powers  and  discharge  the  same  duties,  as 
if  they  had  been  chosen  at  the  regular  election. 

5.  If  it  shall  happen,  from  any  cause,  that  an  election  of  war- 
dens of  the  poor  in  any  county,  shall  not  be  held  on  the  day  ap- 
pointed for  that  purpose,  in  such  case  the  sheriff  shall  appoint  a 
time,  not  less  that  ten  nor  exceeding  twenty  days  thereafter,  for 
electing  wardens  of  the  poor  in  such  county,  and  shall  summon  the 
inhabitants  having  a  right  to  vote  for  members  of  the  house  of  com 
mens,  to  attend,  and  elect  in  maimer  herein  before  directed,  and 


2.  1777,  c.  117,  S-  2. 

3.  1777,  C.  117,  S.  3. 

4.  1777,  c.  117,  s.  4.— 1783,  c.  191,  S.  2.— 1S21,  c.  1119. 

5.  1777,0.  117,  s.  15. 


Chap.  LXXXIX.]  poor.  473 

every  such  election  shall  be  as  good  and  valid,  as  if  the  same  had 
been  made  on  the  day  by  this  act  directed. 

6.  The  meeting  or   court  of  wardens,  in  every  county  in  this  Place  of  meet- 
State,  shall  hereafter  be  held  at  the  court  house,  or  usual  place  of^°8'°^'^^''^®'^^- 
holding  the  court  of  the  county,  and  the  said  wardens,  or  a  major- 
ity of  them,  in  each  county,  at  their  first  meeting  respectively,  shall  ^fPclerk"^™' 
appoint  some  person  of  skill  and  probity  to  officiate  as  clerk,  but 

such  person  shall  not  be  one  of  their  own  body. 

7.  Any  three  of  the  wardens  of  the  poor  in   each  county  shall  Three  wardens 
have  power  to  call  a  meeting  or  court  of  wardens,  when  necessary,  meeting. 

by  summons  under  their  hands,  directed  to  the  sheriff  or  constables 
of  the  county,  who  are  hereby  directed  to  execute  the  same,  under 
the    penalty  of  four  dollars  for  every  warden  in  such  summons  Penalty  on 
named,  whom  he  or  they  shall  fail  to  summon,  and  every  warden,  sheriff  and 
so    summoned  and  refusing  or  neglecting  to  attend,  shall  forfeit  ^e^Jlg^"  of °J^j 
and  pay  the  sum  of  four  dollars,  unless  such  sheriff,  constables  or 
wardens  shall  shew  sufficient  cause  for  the  omission   to  the  next 
meeting  or  court  of  wardens,  which  penalties  shall  be  recovered 
and  applied  as  hereinafter  directed. 

8.  The  wardens  of  the  poor  in  every  county  shall  purchase,  at  Wardens  to 
the  expense  of  the  same,  well  bound  books  for  keeping  a  journal  and  accounts^, 
and  minute  of  their  proceedings,  in  which  shall  be  fairly  stated  ac- 
counts of  all  such  moneys,  as  they  from  time  to  time  shall  receive 

in   virtue  of  their  office,  and  the  manner  in  which  the  same  shall 

have  been  disbursed  ;  and  they  shall  every  year,  at  the  next  court 

of  their  respective  counties  after  the  first  day  of  June,  publish  and  To  publish  an 

set  up,   at  the  court  house,  an  account  of  the  moneys  by  them  re- '^^'^o.^^'^t  of  their 

ceived  by  taxes  or  otherwise  for  the  purposes  aforesaid,  with  the  pendftures  an- ' 

use  and  application  they  have  made  of  the  same,  particularly  spe-  dually. 

cifying  the  expense  of  each  pauper,  with  an  account  of  the  claims 

or  debts  unpaid,  if  any,  and  to  whom  due  ;  under  the  penalty  of 

two  hundred  dollars,  to  be  sued  for  and  recovered  by   action   of 

debt,  in  the  name  of  the  chairman  of  the  court  of  the  county  where 

such  neglect  shall  happen,   and  apphed  to  the  use  of  the  county. 

And  it  shall  be  the  duty  of  the  attorney  or  solicitor,  acting  in  behalf 

of  the   State  in  such  county,  to  institute  and  prosecute  a  suit,  in 

the  name  of  the  chairman  of  the  court,  for  the  recovery  of  such 

penalty. 

9.  The  several  courts  of  pleas  and  quarter  sessions  are  hereby  Tax  to  be  laid 
authorized,  on  the  application  of  the  wardens,  to  lay  a  tax,  which  cJurtson'ap^ 
may  be  sufficient  for  the  maintenance  of  the  poor,  which  said  tax  plication  of  the 
may  be  collected  and  accounted  for  to  the  wardens,  and  apphed  by 

them  in  the  manner  now  prescribed  by  law  :   Provided,  that  a  ma- 
jority of  the  justices  be  present  when  said  tax  is  laid. 

10.  The  sheriff  in  each  and  every  county  shall  collect  the  tax  Sheriff  to  col- 
aforesaid,  and  shall  be  subject  to  the  same  rules,  regulations  and  gountlo  The 
penalties,  in  their  settlement  with  the  wardens  of  their  respective  wardens. 

%■ 

6.  1777,  c.  117,  s.  10. 

7.  1777,  c  117,  S.  7. 

8.  1777,  c.  117,  s.  6.— 1786,  C.  255,  s.  3.— 1792,  C.  361,  s.  2. 

9.  1817,  c.  945,  s.  1. 

10.  ISOS,  c.  754,  s.  2. 

VOL.  I.  60  '^r. 


474  POOR.  [Chap.  LXXXIX. 

counties  for  the  poor  tax,  as  are  prescribed   for  their  settlements 
with  county  trustees. 
Wardens  to  set-      H.   It  shall  be  the  duty  of  the  persons,  who  have  been  wardens 
successoisr^'^    of  the  poor,  to  call  upon,  settle  with  and  pay  over  to  their  succes- 
sors in  office  all  moneys  remaining  in  their  hands  unappropriated, 
which  they  may  have  received  by  virtue  of  their  appointment  as 
wardens  of  the  poor,  and,  on  failure  thereof,   each  warden  shall 
forfeit  and  pay  the  penalty  of  one  hundred  dollars,  to  be  recovered 
by  the  present  wardens,  on  motion  to  the  court  of  their  county, 
first  giving  said  delinquent  wardens  ten  days'  notice  of  their  inten- 
tion to  make  such  motion. 
may^erecrpoor      ^^-   '^^^^  courts  of  pleas  and  quarter  sessions  of  the  several 
houses.  counties  shall  be  and  they  are  hereby  authorized,  when  they  deem 

it  necessary,  a  majority  of  the  justices  of  the   said  courts  being 
present,  to  cause  to  be  erected  poor  houses,  and  other  out  build- 
ings for  the  maintenance  and  support  of  the  poor  of  said  counties, 
with  full  power  and  authority  to  purchase  lands  when  the  same  may 
be  necessary. 
Poor  houses  to      13.   The  Wardens  of  the  poor  of  said  counties  shall,  twenty  days' 
direction  of  the  notic€  at  least  being  given,  annually  let  out  to  the  lowest  bidder  the 
wardens.  said  poor  houses  and  the  poor  of  their  respective  counties,  or  shall 

employ  some  person  as  overseer  to  superintend  the  business,  as  to 
them  may  seem  best,  such  contractor  or  overseer  giving  bond  and 
approved  security  for  the  faithful  discharge  of  the  duties  assigned 
to  him  ;  and  the  wardens  shall  have  full  power  and  authority  to  or- 
dain bylaws,  rules  and  regulations,  and  do  all  such  matters  and 
things  as  they  may  deem  expedient,  for  the  promotion  of  the  said 
poor  house,  and  the  comfort  of  the  poor. 
Property  of  i4_    The  property  held  by  the  wardens  of  the  poor  of  the  seve- 

empt  from  tax-  ral  counties  in  this  State,  for  the  use  of  the  poor  of  the  said  coun- 
ation.  ^jgg^  gj-iglj  i3g  exempt  from  the  payment  of  any  tax  whatever. 

toTay^taxes'^for  l^'  "^^^^  ^aid  courts  shall  have  full  power  and  authority  to  lay 
the  erection  of  the  taxes  necessary  to  carry  into  effect  the  purposes  of  this  act,  in 
poor   ouses.     j-glation  to  the  purchase  of  land,  and  the  erection  thereon  of  suitable 

buildings  for  the  maintenance  of  the  poor. 
What  shall  be        16.   No  person  shall  be  accounted  an  inhabitant,  SO  as  to   have 
men^!  ^°    ^'    gained  a  legal  settlement  in  any  county,  until  such  person  shall  have 

been  actually  resident  in  such  county  one  whole  year. 
How  paupers         17.   Upon  Complaint  made  by  the  county  wardens  of  any  coun 

coming  mto  a  -i     c  •       •  r     ^  -1  1 

county  may  be  ty,  beiore  a  justice  01  the  peace,  that  any  poor  person  has  come 
removed.  i^^Q  their  county,  and  is  likely  to  become  chargeable  thereto,  it  shall 

be  lawful  for  such  justice,  by  warrant  under  his  hand,  to  cause  such 
poor  person  to  be  removed  to  the  county  where  he  or  she  was  last 
legally  settled  ;  but  if  such  poor  person  be  sick  or  disabled,  and 
cannot  be  removed  without  danger  of  life,  the  county  wardens  shall 
provide  for  his  or  her  maintenance  and  cure  at  the  charge  of  the 

*•  11.  1798,  c.  497,  s.  3. 


12. 

1831,  c.  17,  s.  1. 

13. 

1831,  c.  17,  s.  2. 

14. 

1831,  c.  17,  s.  3- 

15. 

1831,  c.  17,  s.  4. 

16. 

1777,  C.  117,  s.  16. 

17. 

1777,  c.  117,  s.  17. 

—  1834,  c.  21 

Chap.  LXXXIX.]  poor.  475 

county,  and  after  recovery  shall  cause  him  or  her  to  be  removed  ; 

and  m  cases  of  removal,  it  shall  and  may  be  lawful  for  the  wardens  County  where 

to  pay  the  charses  of  such  removal,  and  such  fees  to  the  persons  /IS  Ff^^^ 

^   J    .  ,         °.  ,  r  •  1  -11  11  settled  to  pay 

conveymg  the  said  pauper,  as  are  lau'  and  equitable,  and  the  coun-  all  charges. 
ty,  wherein  he  or  she  was  last  legally  settled,  shall  repay  all  charges 
occasioned  by  the  sickness,  maintenance  and  cure  of  such   poor 
person,  and  all  the  charges  and  expenses  incurred  by  such  removal, 
and  also  all  charges  and  expenses,  if  such  person  shall  die  before 
removal ;  and  if  the   wardens  of  the  county,  to  which  such  poor 
person  belongs,  shall  refuse  to  receive  and  provide  for  the  person 
removed  by  warrant  as  aforesaid,  every  warden,  so  refusing,  shall 
forfeit  and  pay  forty  dollars,  one  half  to   the   use  of  the   county 
from  whence  the  removal  was,  and  the  other  half  to  the  informer, 
to  be  recovered  by  action  of  debt,  with  costs  of  suit ;  and  if  the 
wardens  of  the  county,  where  such  person  was  legally  settled,  shall 
refuse  to  pay  and  satisfy  all  the  charges  and  expenses  aforesaid,  in 
such  case  they  shall  be  hable  for  the  same,  to  be  recovered  with 
costs  in'  the  county  court  ;  and  if  any  housekeeper  shall  entertain  Housekeepers 
such  poor  person,  and  shall  not  give  notice  thereof  to  the  wardens  ^f  l^ch  pau- 
of  his  county,  or  one  of  them,  within  one  month,  he  or  she,  so  pers  to  the 
offending,  shall  forfeit  and  pay  the  sum  often  dollars,  to  be  recov-  ^^'^  ^"^" 
ered  with  costs  by  the  county  wardens,  for  the  use  of  the  county, 
by  warrant  before  a  justice  of  the  peace. 

18.  When   any  citizen  of  the   State  is  absent  on  service  as  a  Wardens  to 

•1-  •  1  1  •     i-       -1  11  I  11-        support  the 

militiaman,  and  his  lamiJy  are  unable  to  support  themselves  during  families  of  poor 
his  absence,  the   court  of  wardens  of  the  county  to  which  he  be-  "iilj'i'^  ^f^  ^^- 

...  1     11  1  •  1       11  sent  on  ser- 

longs,  on  application,  shall  make  him  or   them  such  allowances  as  vice, 
they  think  reasonable  out  of  their  tax,  towards  the  maintenance  of 
such  man's   family,  and  an  account  of  such  expenditures  shall  be 
be  allowed  in  their  settlement  with  the  county. 

19.  The  owner  of  every  slave,  who  shall  be  rendered  incapable  Wardens  to 
of  service  from  advancement  in  years  or  other  disability,  shall  pro-  P'"ovide  for  m- 
vide    and    furnish  such  slave  with   the   usual  allowance  of  food,  lected  by  their 
raiment   and    lodging,    furnished    to    slaves  in    the    neighborhood  owners,  and 
where  such  slave  may  be,  and  if  any  such  slave  shall  be  unprovided  from  the  own- 
for  by  his  or  her  owner  as  aforesaid,  it  shall  and  may  be  lawful  for  ^'^■^• 

the  wardens  of  the  poor  of  the  county,  where  such  slave  may  be, 
(if  the  owner  of  such  slave  lives  in  such  county)  and  they  are  here- 
by required  to  furnish  such  slave  with  food,  raiment  and  lodging 
aforesaid,  and  make  a  charge  of  the  same  to  the  owner  of  such 
slave,  which  sum  so  expended  the  said  wardens  shall  and  may 
recover  by  warrant  against  such  owner  before  any  justice  of  the 
peace,  if  the  sum  so  expended  exceeds  not  the  sura  cognizable 
before  a  justice  by  law  ;  if  so,  then  before  any  jurisdiction  having 
cognizance  of  the  same.  Provided  alivays,  that  the  said  wardens  Owners  to  have 
shall  not,  at  the  expense  of  the  owner,  provide  such  slave  aforesaid,  pie^ious 
until  they  or  one  of  them  shall  first  have  given  the  owner  of  such 
slave   notice  to  provide  for  and  furnish  such  slave,  as  is  herein  li 

required,  which  notice  shall  be  served  upon  such  owner  ten  days 
previous  to   the  wardens  providing  for  such  slave,  and   shall  and 

18.  1779,  C.  152. 

19.  179S,  C.498,  s.  1. 


476 


POOR. 


[Chap.  LXXXIX. 


Executors,  ad- 
ministrators 
and  guardians 
liable  to  tbe 
"wardens  if  they 
neglect  to  pro- 
vide for  slaves 
under  their 
care. 


Duty  of  the 
wardens  when 
the  owner  lives 
in  another 
county. 


Two  wardens 
may  act  in  the 
case  of  such 
slaves. 

Power  of  the 
wardens  when 
a  person  hav- 
ing infirm 
slaves  is  about 
to  remove  out 
of  the  county. 


Stock,  &c.  be- 
longing to 
slaves,  to  be 
seized  by  the 
wardens. 


How  forfeit- 
ures and  pen- 
alUes  may  be 
recovered. 


may  be  issued  by  any  one  of  said  wardens,  upon  information  being 
given  to  him,  and  by  him  directed  to  the  sheriff  or  a  constable  of 
the  county,  who  is  hereby  required  forthwith  to  execute  the  same, 
and  make  return  of  the  same  to  the  warden  who  issued  such  no- 
tice, or  to  any  one  of  tliem. 

20.  If  the  owner  of  any  such  slave  shall  be  dead,  the  executors 
or  administrators  of  such  deceased  owner  shall  provide  for  such 
slave,  in  the  manner  aforesaid,  out  of  the  estate  of  such  deceased 
owner,  and  upon  failure  so  to  do,  the  wardens  aforesaid  shall  pro- 
vide for  such  slave  aforesaid,  and  proceed  against  such  executors 
or  administrators  in  every  respect,  as  herein  directed  against  the 
owner,  or  if  any  such  slave  shall  be  liable  to  the  direction  of  any 
guardian,  such  guardian  shall  make  the  provision  aforesaid  for  such 
slave  out  of  the  estate  of  his  ward,  and  upon  failure,  the  wardens 
aforesaid  shall  provide  for  such  slave  as  aforesaid,  and  proceed 
against  such  guardian  in  manner  aforesaid,  and  such  executors, 
administrators  and  guardians  shall  be  allowed  the  expense  of 
making  such  provision  for  such  slave,  in  their  settlements. 

21.  When  any  such  slave  shall  be  in  a  county  other  than  the 
county  where  the  owner  of  such  slave,  or  the  executors  or  admin- 
istrators of  a  deceased  owner,  or  guardian  reside,  the  wardens 
aforesaid  may  remove  such  slave  to  the  owner,  or  to  the  executors 
or  administrators  of  the  deceased  owner,  or  to  the  guardian,  at  the 
expense  of  such  owners,  and  at  the  expense  of  the  executors, 
administrators  and  guardian  in  such  cases. 

22.  Any  two  of  the  wardens  of  the  poor  shall  have  power  and 
authority  to  carry  the  foregoing  provisions,  relative  to  disabled 
slaves,  into  effect. 

23.  The  wardens  of  the  poor  in  the  several  counties,  or  any 
one  of  them,  shall  have  power  and  authority,  on  information  to  him 
or  them  made,  that  any  person  is  about  to  remove  out  of  the  county, 
and  has  any  slave  or  slaves  that  are  likely  to  become  a  county 
charge,  to  issue  their  or  his  warrant  to  bring  such  person  before 
him  or  them,  and  take  such  security  by  bond,  as  may  be  deemed 
sufficient  to  indemnify  the  county,  which  bond  shall  be  made  paya- 
ble to  the  State  of  North  Carolina.  And  in  case  such  person 
shall  refuse  to  give  bond,  as  is  herein  directed,  he  or  they  shall 
have  power  and  authority  to  commit  the  said  person,  and  keep  him 
committed  until  he  shall  enter  into  such  bonds,  or  remove  the 
slave  or  slaves,  so  about  to  be  left,  without  the  hmits  of  the  county. 

24.  All  horses,  cattle,  hogs,  or  sheep,  that  shall  belong  to  any 
slave,  or  be  of  any  slave's  mark  in  this  State,  shall  be  seized  and 
sold  by  the  county  wardens,  and  by  them  applied,  the  one  half  to 
the  support  of  the  poor  of  the  county,  and  the  other  half  to  the 
informer. 

25.  The  several  forfeitures  and  penalties   by  this  act  inflicted, 

20.  1798,  c.  493,  s.  2. 

21.  1798,  c.  498,  s.  3. 

22.  1793,  c.  498,  s.  4. 

23.  1801,  c.  584,  s.  2. 

24.  1779,  c.  152,  s.  1. 

25.  1777jC.  117)  S.  13. 


I 


Chap.  XC] 


PRISONERS. 


47T 


for  which  no  method  of  recovery  or  application  is  herein  before 
directed,  shall  and  may  be  recovered  with  costs,  before  any  juris- 
diction, having  cognizance  thereof,  one  half  to  the  use  of  the  in- 
former, the  other  half  to  the  county  wardens,  for  the  use  of  the 
poor  of  the  county,  wherein  such  penalties  shall  be  incurred. 


CHAPTER  90. 


PRISONERS. 


AN  ACT  CONCERNING  PRISONERS 

Section  / 


10 


11 


Section 

1 .  Keepers  of  jails  in  this  State,  to  re- 

ceive and  keep  prisoners  of  the 
United  States — Jailers  to  have  the 
same  fees  as  for  keeping  prisoners 
of  this  State. 

2.  When  the  jail  of  any  county  shall  be 

destroyed,  the  prisoners  shall  be 
sent  to  the  jail  of  an  adjoining 
count}'. 

3.  When  there  shall  be  no  jail  in  any 

county,  the  courts  and  magistrates 
may  send  prisoners  to  the  jail  of  an 
adjoining  county. 

4.  In  such  cases,   the  sheriff,   &c.  may 

confine  any  person  arrested  under 
process,  civil  or  criminal,  in  the  jail 
of  an  adjoining  county- 

5.  Sheriff,  apprehensive  of  prisoners  es- 

caping, how  to  proceed  to  obtain  a 
guard — Persons  ordered  on  guard, 
to  receive  compensation. 

6.  Prisoners,    committed     for   criminal 

offences,  to  bear  the  charges  of  im- 
prisonment. 

1.  Whereas  it  is  recommended  by  the  resolve  of  the  first  ses- 
sion of  the  congress  of  the  United  States,  to  the  legislatures  of  the 
several  States,  to  pass  laws  making  it  expressly  the  duty  of  the 
keepers  of  their  jails,  to  receive,  and  safe  keep  therein,  all  prison- 
ers committed  under  the  authority  of  the  United  States,  until  they 
shall  be  discharged  by  the  due  course  of  the  laws  thereof,  under 
the  like  penalties  as  in  the  case  of  prisoners,  committed  under  the 
authority  of  such  States  respectively,  the  United  States  promising, 
on  their  part,  to  pay  for  the  use  and  keeping  of  such  jails,  at  the 
rate  of  fifty  cents  per  month,  for  each  prisoner  who  shall  be  com- 


^/iti- 


7.  Claims  for  guarding,  &c.  prisoners, 

to  be  paid  by  the  county  from  which 
they  are  sent. 

8.  Prisoners  may  purchase  necessaries 

in  addition  to  the  diet  furnished  by 
the  jailer — Penalty  on  jailers  for  in- 
juring prisoners. 

9.  Jailer  to  cleanse  the  jail  and  furnish 

diet. 

Blankets  and  bed  clothing  to  be  pro- 
vided for  the  use  of  the  prisoners. 

Prison  bounds,  for  the  benefit  of  pris- 
oners, to  be  laid  out  by  the  county 
court. 

12.  Bonds,  taken  from  debtors  for  keep- 

ing the  prison  bounds,  how  to  be 
proceeded  on. 

13.  Manner  of  transferring  prisoners  from 

a  sheriff"  to  his  successor. 

14.  Prisoners  to  be  confined  in  the  proper 

apartments  of  the  jail— Penally  on 
sheriff"  or  jailer  for  confining  them 
otherwise. 


478  PRISONERS.  [Chap.  XC. 

mitted  under  their  authority,  during  the  time  such  prisoner  shall  be 
confined  therein,   and   also  to  support  such   prisoners  as  shall  be 
committed  for  offences  :   To  carry  the  said  resolve  into  effect, 
Keepers  of  jails      Be   it  enacted  by  the  General  Assembly  of  the   State  of  Jforth 
receive  and*^  °  Carolina,  and  it  is  hereby  enacted  by   the    authority  of  the  same, 
keep  prisoners  That  when  any  prisoner  or  prisoners  shall  be  delivered  to  the  keep- 
States.  ^^  ^      er  of  any  jail  in  this   State,  by  the  authority  of  the  United  States, 
such  keeper  is  hereby  commanded  to  receive   such  prisoner,  or 
prisoners,  and  commit  him  or  them  accordingly  :  And  all  and  every 
keeper  or  keepers  of  any  jail  in  this   State,  refusing  or  neglecting 
to  take  possession  of  any  prisoner  or  prisoners,  delivered  to  him 
or  them  by  the  authority  aforesaid,  shall   be   subject  to   the  same 
pains  and  penalties,  as  for  neglect  or  refusal  to  commit  any  prison- 
er or  prisoners,  delivered  them  under  the  authority  of  this  State  : 
Jailers  to  have  Provided  alivays.)  the  allowance  for  the  maintenance  of  any  prison- 
the  same  fees    gj.  qj.  prisoners  committed  to   any  of  the  prisons   of  this  State, 

8.S  lor  K66P1U'^  -*■  .  ,  ^  m 

prisoners  of  "   under  the  authority  of  the  United  States,  shall  be  equivalent  to  the 
this  State.        allowances  made  for   prisoners   committed   under  the  authority  of 

this  State. 
When  the  jail  ^'  Whenever  the  public  jail  of  any  county  shall  be  destroyed 
of  any  county  by  fire  or  Other  accident,  it  shall  and  may  be  lawful  for  any  justice 
destroyed  the  ^^  ^he  peace  of  such  county  to  cause  all  prisoners  confined  therein, 
prisoners  shall  at  the  time  of  such  destruction,  to  be  brought  before  him,  and  up- 
iaifofsome'^  On  the  production  of  the  process,  under  which  any  prisoner  or 
adjoining  prisoners  were  confined  in  the  jail  so  destroyed,  it  shall  be  the 
county.  ^j^^^^  ^|-  g^^^j^  justice  to  Order  the  commitment  of  all  such  persons, 

to  the  jail  or  jails  of  any  of  the  adjacent  counties,  and  the  sheriff, 
constable,  or  any  officer,  deputed  for  that  purpose,  in  the  county 
where  said  justice   resides,  shall   be  bound   to  obey  the  order  so 
«  made,  and  the  sheriff  or  keeper  of  the  common  jail  of  any  such 

adjacent  county  shall  be  bound  to  receive  such  prisoner  or  prison- 
ers, upon  the  order  of  such  justice,  under  the  penalties  now  pro- 
vided by  law  for  any  failure  to  perform  the  like  duties. 
When  there  3.   Whenever,  from  any  cause,  it  shall  happen  that  there  shall 

shall  be  no  jail  be  no  public  jail  in  any  county,  it  shall  and  may  be  lawful  for  the 
the'^courtr'and  Superior  courts  of  law  and  equity,  the  courts  of  pleas  and  quarter 
magistrates      sessions,  justices  of  the  peace,  and  all  other  judicial  officers  of 
oners^tothe'   "  sucli  county,  to  Commit  all  persons  who  maybe  brought  before 
jail  of  an  ad-    them,  whether  in  a  criminal  or  civil  proceeding,  to  the  jail  of  any 
jommgcouny.  g(]JQij-,ij-,g  county,  for  the  same   causes,   and  under  the  like  regula- 
tions  that  they  might  have  ordered  commitments   to  the  jail  of 
their  own  counties,  if  any  existed  ;  and   the   sheriffs,  constables 
and  other  officers  of  such  county,  in  which  there  may  be  no  jail, 
and  the  sheriffs  or  keepers  of  the  jails  of  the  adjoining  counties, 
shall  be  bound  to  obey  any  order  of  commitment,  so  made,  under 
the  like  penalties  as  aforesaid. 
In  such  cases,       4.   The  sheriffs,  constables,  and  other  ministerial  officers  of  any 
ma^^^coiiime^'^  *^°"^^^y'  '^^^  whicli  there  may  be   no  jail,  shall  have  power,  authori- 

1.  1790,  c.  322,  s.  1  and  2. 

2.  1835,  c,  2,  s.  1. 

3.  1835,  c.  2,  s.  2. 

4.  1835,  c.  2,  s.  3.  ^ 


CpIAP.  XC]  '        PRISONERS.  479 

ty  and  privilege  to  confine  any  prisoner,  who  has  been  arrested  on  any  person  ar- 
process,  either  civil  or  criminal,  and  who  may  be  held  in  custody  procets^cMl  or 
for  want  of  bail,  in  the  jail  of  any  adjoining  county,  until  sufficient  criminal,  in  the 
bail  shall  be  given  or  tendered  ;  and  the  sheriffs  or  keepers  of  the  jq||,°/„^"q^JJ" 
jails,  shall  receive  such  prisoners  in  the  like  manner  as  aforesaid, 
and  all  sheriffs  or  keepers  of  jails,  who  shall  suffer  any  prisoner  or 
prisoners  committed  to   their  custody,  in  any  of  the  modes  afore- 
said, to  escape  therefrom,  shall  be  liable  to  indictment  and  punish- 
ment, as  in  other  cases  of  escape. 

5.  Whenever  the  sheriff  of  the  county,  wherein  any  jail  is  situ- Sheriff,  appre- 
.ated,  or  the  person  keeping  such  jail,   shall  be  apprehensive  that  Q,*jg^g^gg°*  P[^^' 

there  is  danger  of  the   prisoners'   escaping,  either  through  the  in- how  to  proceed 
sufficiency  of  the  jail  or  other  cause,  it  shall  be  his  duty,  without  luard^™  ^ 
delay,  to  make  information  thereof  to  a  judge  of  the  superior  court, 
the  attorney  general,  or  either  of  the  solicitors,  if  either  of  those 
officers  be  in  the  county,  and  if  not  in  the  county,  to  three  justices 
of  the  peace,  who  are   hereby  authorized,  upon   consideration   of 
the  circumstances,  and   information  received,  if  they  deem  it  ad- 
visable, to  furnish  the  said  sheriff"  or  keeper  of  the  jail  with  an  or- 
der in  writing,  addressed  to  the  commanding  officer  of  the  county, 
setting  forth  the  danger,  and  requiring  him  forthwith  to  furnish  such 
guard  as  may  appear  to  be  suitable  for  the  occasion  :  For  which  Persons  order- 
service,  the  persons  ordered  out  shall  receive  such  compensation,  recervf  com-^° 
as  is  or  may  hereafter  be  provided  by  law  for  militia,  when  called  pensatlon. 
into  actual  service  for  the   defence  of  the  State  :  and  on  applica- 
tion for  the  same,  the  letter  to  the  commanding  officer,  on  which 
the  guard   was   ordered  out,  the  certificate  of  such  commanding 
officer,  countersigned  by  the  sheriff"  or  jailer,  together  with  the  de- 
position of  the  officer  of  the  guard,  setting  forth  the  time  of  ser- 
vice, and  that  it  was  faithfully  performed,  shall  be  sufficient  to  au- 
thorize the  payment  of  the  same. 

6.  All  and  every  person  or  persons,  who  shall  be  hereafter  com-  mhted^or  ™'^^' 
mitted  to  a  public  jail,  by  lawful  authority,  for  any  criminal  offence  criminal  of- 
or  misdemeanor  against  this  State,  shall  bear  all  reasonable  charges  |he'^ehar°es'^of 
for  carrying    and  guarding    them    to  the   said  jail,   and  also    for  imprisonment. 
their  support  therein,   until  lawfully  released  ;  and  all  the  estate, 

which  such  persons  possessed  at  the  time  of  committing  the  offence, 
shall  be  subject  to  the  payment  of  the  aforesaid  charges  and  other 
prison  fees,  in  preference  to  all  other  debts  or  demands  ;  and  in 
case  there  be  no  visible  estate  whereon  to  levy  such  fees  and 
charges,  the  amount  shall  be  paid  by  the  county,  according  to  the 
provisions  of  the  law  in  such  cases.  . 

7.  All  claims  for  guarding  prisons,  and  conveying  prisoners,  shall  guarding-,  &c. 
be  allowed  by  the  court  of  the  county,  in  which  such  prison  is  situ-  prisoners  to  be 
ated,  or  from   which  any  prisoner  is  removed,  and  paid  off' by  the  county  from 
county  trustee,  out  of  the  moneys  levied  for  such  purpose.  "^^'^''='1  ^^'^y  ^^'^ 

8.  All  prisoners,  committed  to  any  jail  in  this    State,  shall  be  prisoners  may 
permitted  to  purchase  and  send  for  such  necessaries,  in  addition  to  purchase  nec- 

*  *  ■"  essaries  m  ad- 

5.  1795,  c.  433,  s.  8. 

6.  1795,  c.  433,  S.  7. 

7.  1808,  c.  757,  s.  2. 
S.  i;'.i5,  c.  431^*.  5. 


480 


PRISONERS. 


[Chap.  XC. 


dition  to  the 
diet  furnished 
by  the  jailer. 

Penalty  on 
jailers  for  in- 
juring prison- 
ers. 


Jailer  to 
cleanse  the 
jail  and  furnish 
diet,  &c. 


Blankets  and 
bed  clothing 
to  be  provided 
for  the  use  of 
prisoners. 


the  diet  furnished  by  the  jailer,  as  they  may  think  proper,  and  to 
provide  their  own  bedding,  hnen  and  clothing,  without  their  being 
obliged  to  pay  any  perquisite  to  the  jailer  for  such  indulgence  ; 
and  if  the  keeper  of  a  public  jail  shall  do  or  cause  to  be  done  any 
wrong  or  injury  to  the  prisoners,  committed  to  his  custody,  con- 
trary to  the  intention  of  this  act,  he  shall  not  only  pay  treble  dam- 
ages to  the  person  injured,  but  such  fine  not  exceeding  forty  dol- 
lars, for  each  offence,  in  addition  thereto,  as  the  court  of  the 
county,  where  the  prisoner  is  confined,  shall  think  fit  to  impose. 

9.  It  shall  be  the  duty  of  the  jailer,  or  keeper  of  any  public  pris- 
on, to  cleanse,  each  and  every  day,  the  room  of  the  prison  in  which 
any  person  shall  be  confined,  and  cause  all  filth  to  be  removed 
therefrom,  and  also  to  furnish  the  prisoner  or  prisoners,  confined 
in  said  jail,  good  and  wholesome  water,  three  times  in  each  and 
every  day,  and  shall  find  each  prisoner  fuel,  one  pound  of  whole- 
some bread,  one  pound  of  good,  roasted  or  boiled  flesb,  and  a  suf- 
ficient quantity  of  water,  and  every  necessary  attendance, 

10.  It  shall  be  the  duty  of  the  courts  of  pleas  and  quarter  ses- 
sions, from  time  to  time,  as  may  be  necessary,  to  order  the  sheriff 
of  their  respective  counties  to  purchase,  for  the  use  of  their  jails, 
a  certain  number  of  good  warm  blankets,  or  other  suitable  bed 
clothing  ;  which  blankets  or  bed  clothing,  so  purchased,  shall  be 
securely  preserved  by  the  jailers,  and  furnished  to  the  prisoners  for 
their  use  and  comfort,  as  the  season  or  other  circumstances  may 
require  ;  and  it  shall  be  the  duty  of  the  sheriffs,  at  least  once  in 
every  year,  to  report  to  the  court,  the  condition  and  number  of 
such  blankets  and  bed  clothing  :  Provided,  that  whenever  any  ne- 
gro prisoners  are  allowed  the  use  of  said  blankets  or  clothing,  their 
owner  shall  pay  to  the  jailers,  in  addition  to  the  other  fees,  the  sum 
of  two  and  a  half  cents  per  day  for  each  and  every  blanket  had  in 
use  by  such  prisoner  ;  which  sum  shall  be  accounted  for  to  the 
court  by  the  jailer  receiving  the  same. 

Prison  bo unds,      11.   For  the  preservation  of  the  health  of  such  persons,-  as  shall 
o7pdsoners^\o  ^^  ^'^Y  ^'"^^  hereafter  be  committed  to  the  county  prisons,  the  court 
be  laid  out  by   shall  havc  powcr  to  mark  out  such  a  parcel  of  the  land  as  they  shall 
court""*^^^        think  fit,  not  exceeding  six  acres,  adjoining  to  the  prison,  for  the 
rules  thereof ;  and  every  prisoner,  not  committed  for  treason   or 
^.-felony,  giving  good  security  to  the  sheriff  of  the  county  to  keep 
within  the  said  rules,  shall  have  liberty  to  walk  therein,  out  of  the 
prison,  for  the  preservation  of  his  or  their  health  ;  and  every  pris- 
oner,  giving   such   security  a&  aforesaid,  and  keeping  continually 
within  the  said  rules,  shall  be  and  is  hereby  adjudged  and  declared 
to  be  in  law  a  true  prisoner  ;  and  that  every  person,  therewith  con- 
cerned, may  know  the  true  bounds  of  said  rules,  the  same  shall  be 
recorded  in  the  county  records,  and  the  marks  thereof  shall,  from 
time  to  time,  be  renewed  as  occasion  may  require. 
Bonds  taken  J2.   All  and  everv  bond  or  bonds,  which  shall  hereafter  be  given 

Irom  debtors       .  /-ii  •  r    i  •  i 

for  keeping  the  m   pursuance  ot   the  above  section  ot  this  act,  by  any  person  or 


9.  1816,  c.  911,  s.  2.— 1815,  c.  899. 

10.  1822,  c.  1136. 

11.  1741,  c.  3.3,  S.  3. 

12.  1759,  c.  65,  s.  2  and  S. 


Chap.  XC]  prisoners.  481 

persons  committed  on  a  capias  ad  satisfaciendum,  shall,  by  the  prison  bounds, 
sheriff  taking  the  same,  be  assigned  to  the  party  at  whose  instance  ^"Jded  on  ^'^°" 
such  person  or  persons  was  or  were  committed  to  jail,  and  shall  be 
returned  to  the  office  of  the  clerk  of  the  court  from  whence  such 
execution  issued,  there  to  be  safely  kept,  and  shall  have  the  force 
of  a  judgment ;  and  if  any  person,  who  shall  obtain  the  rules  of  any 
prison,  upon  giving  bond  and  security,  as  aforesaid,  shall  escape 
out  of  the  same,  before  he  shall  have  paid  the  debt  or  damages  and 
costs,  according  to  the  condition  of  such  bond,  it  shall  be  lawful, 
and  full  power  and  authority  is  hereby  given  to  the  court,  where 
such  bond  is  lodged,  upon  motion  of  the  party  for  whom  such 
execution  issued,  to  award  execution,  against  such  person  and  his 
securities,  for  the  debt  or  damages  and  costs,  with  interest  to  be 
computed  from  the  time  of  such  escape  till  payment ;  and  no  per- 
son or  persons  whatsoever,  who  shall  be  committed  to  jail  on  any 
such  execution,  shall  have  or  be  allowed  the  rules  of  any  prison, 
but  shall  be  kept  in  safe  custody  in  the  prison  to  which  he  or  they 
shall  be  committed,  until  the  whole  debt  or  damages,  wdth  interest 
and  costs,  shall  be  fully  paid  and  satisfied  :  Provided  always,  that 
such  obligors  have  ten  days'  previous  notice  of  such  motion,  in 
writing  ;  and  the  obhgors,  in  such  case,  shall  not  be  admitted  to 
plead  non  est  factum  in  their  defence,  unless  they  shall,  by  affida- 
vit, prove  the  truth  of  such  plea. 

13.  The  delivery  of  prisoners,  by  indenture  between  the   old  Manner  of 
sheriff  and  the  new,  or  the  entering  on  record  in  court  the  names  prisone7s'ffom 
of  the  several  prisoners  and  the  causes  of  their  commitment,  deliv-  a  sheriff  to  his 
ered  over  to  the  new  sheriff,  shall  be  sufficient  to  discharge  the  late  ®'^'^<=^^^°''- 
sheriff,  from  all  suits  and  actions  for  any  escape  that  shall  happen. 

14.  It  shall  be  the  duty  of  the  sheriff  or  jailer  to  confine  those,  Prisoners  to  be 
committed  to  his  custody,  in  the  apartment  provided  and  designated  the  proper'^ 
by  law  for  persons  of  the   description  of  which  the  prisoner  may  apartments  of 
be  ;  and  in  case  a  sheriff  or  jailer  shall  wantonly  or  unnecessarily  Pe*^nalty  on 
confine  prisoners,  committed  to  his  keeping,  otherwise  than  is  by  sheriff  or  jailer 
this  section  directed,  it  shall  be  a  misdemeanor  in  office,  and,  upon  thenTother-^ 
conviction,  he  shall  be  fined  at  the  discretion  of  the  court.  wise. 

13.  1777,  c.  118,  s.  12. 

14.  1795,  c.  433,  s.  4. 


Note. — References  to  Adjudged  Cases. 

Sect.  12.  Wynn  vs.  Buchett,  Tayl.  140.     Brown  vs.  Pulliam,  1  Murph.  421.     Mann 
vs.  Vick,  1  Hawks,  427.     Gidney  vs.  Halsey,  2  Hawks,  550. 

VOL.    I.  61 


482 


PROCESSIONING. 


[Chap.  XCI. 


CHAPTER  91. 


PROCESSIONINO. 


AN   ACT  CONCERNING    THE  PROCESSIONING  OF   LANDS. 


Section 

1.  County  courts  to  divide  their  counties 

into  districts,  and   appoint  a  pro- 
cessioner  in  each  district. 

2.  Processioners  to  take  oaths. 

3.  Owners  of  lands,  how  to  proceed  to 

have  them  processioned. 

4.  When  land  lies  partly  in  two  counties, 

it  may  be  processioned  by  proces- 
sioners in  either. 

5.  Processioner  to  make  out  a  certificate 

in  words  at  full  length  and    return 
it  to  the  clerk,  &e. 


County  courts 
to  divide  their 
counties  into 
districts,  and 
appoint  a  pro- 
cessioner m 
each  district. 


Sectiox 
6.    Certificate   to    be    recorded    by  the 
clerk. 

What  to  be  done  when  a  line  is  dis- 
puted, and  the  processioner  is  for- 
bidden to  proceed. 

Person  whose  lands  have  been  twice 
processioned,  to  be  deemed  the 
owner — Proviso  as  to  what  persons 
shall  not  be  bound  by  such  proces- 
sioning. 


7. 


8. 


Processioner  to 
take  oaths. 


Owners  of 
lands,  how  to 

Eroceeed  to 
ave  them  pro- 
cessioned. 


When  land  lies 
partly  in  two 
counties,  it 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  it  shall  be  the  duty  of  the  several  county  courts  of  this  State, 
to  divide  their  respective  counties  into  as  many  districts  as  to  them 
shall  appear  most  convenient,  for  the  purpose  of  having  proces- 
sioned the  lands  of  all  such  persons  as  desire  it,  and  it  shall  be  the 
further  duty  of  the  said  counties,  whenever  application  is  made  for 
the  same,  to  appoint  some  person  capable  of  surveying,  to  act  as 
processioner  in  the  respective  districts,  and  where  any  person 
appointed  processioner  shall  die,  remove,  refuse  to  act,  or  resign, 
the  court  shall  appoint  another  to  fill  such  vacancy,  as  soon  as 
possible  after  the  same  happens. 

2.  The  processioners,  appointed  in  pursuance  of  this  act,  pre- 
vious to  entering  upon  the  execution  of  their  office,  shall  take,  in 
open  court  or  before  some  justice  of  the  peace,  the  oaths  appointed 
for  the  qualification  of  pubHc  officers  and  also  an  oath  of  office. 

3.  The  proprietor  of  any  land  in  this  State,  desirous  to  have 
the  same  processioned,  shall  cause  to  be  given  ten  days  notice  to 
all  persons,  whose  lands  may  be  adjoining  to  any  tract  which  he  is 
about  to  procession,  which  notice  shall  be  in  writing,  and  a  copy  of 
the  same  delivered  to  the  processioner,  signed  by  the  person  who 
served  such  notice. 

4.  Whenever  any  tract  of  land  shall  lie  partly  in  one  county  and 
partly  in  another,  it  shall  be  lawful  for  the  processioners  of  the 

1.  1792,  c.  365,  s.  I,  2  and  4.— 1804,  c.  670,  s.  2. 

2.  1792,  c.  365,  s.  3. 

3.  1792,  c.  365,  s.  5. 

4.  1804,  c.  670,  s.  1. 


Chap.  XCl.]  processioning.  483 

district  in   either  county,  on  application  of  any  person  who  may  may  be  pro- 
have  lands  so  divided,  lying  partly  in  his  said  district,  to  procession  proceTslonMs 
the  same  in  like  manner  as  if  the  whole   tract  lay  in  the  same  in  either. 
county. 

5.  The  processioner  shall  make  out  a  certificate,  in  words  at  f'"°^*^p^°"f 

r  /-iiii-  •  11-1  '•°  make  out  a 

full  length,  for  each  tract  of  land  by  him  processioned,  which  cer-  certificate  in 
tificate  shall  contain  the  claimant's  name,  the  quantity  of  acres,  the  ^o^'j^^^^^l^ 
corners  and  number  of  poles  contained  in   each  line,  signed  by  return 'it  to  the 
such  processioner,  and  the  certificate  made  out  as  aforesaid,  shall  ^lerk.&c 
be   returned  to   the  clerk  of  the  county,  where  said  lands  lie, 
together  with  a  copy  of  the  several  notices. 

6.  The  clerk,  upon  receiving  such  certificate,  shall  record  the  Certificate  to 
same  in  a  bound  book,  specially  kept  for  that  purpose,  and  file  the  the'^clerk!'     ^ 
same  with  the  notices  in  his  office  ;  and,  for  every  certificate  by 

him  recorded,  he  shall  be  entitled  to  receive  twenty  cents,  which, 
together  with  the  fees  of  the  processioner,  shall  be  paid  by  the 
proprietor  of  the  land  processioned. 

7.  In  all  cases  where  a  line  is  disputed,  and  the  processioner  is  What  to  be 

/•     1  •  1  1        1  -1  n     r  •         •  1    •       r  i     r  ^1      done  when  a 

torbidden  by  either   ol  the   parties,  interested  in  the  event  oi  the  une  is  disputed, 
processioning,  to  proceed  further  in  running  and  marking  the  same,  ^"^^  the  pro- 

•      1     11  1        IT/-         I  •  11-1        11  ■         1    cessioner  is 

it  shall  be  the  duty  oi  such  processioner,  he  being  legally  appointed,  forbidden  to 
to  report  the  same,  stating  truly  all  the  circumstances  of  the  case,  proceed, 
with  the  name  of  the  person  or  persons  who  forbade  the  further 
proceedings,  to  the  next  succeeding  court  of  the  county,  in  which 
the  land  lies  ;  and  it  shall  be  the  duty  of  the  court,  receiving  such 
report,  to  appoint  five  respectable  freeholders,  whose  duty  it  shall 
be  to  appear  with  the  processioner  on  the  line  or  lines  so  disputed, 
and  proceed,  after  being  sworn  by  the  processioner  or  some  justice 
of  the  peace,  to  do  equal  right  and  justice  between  the  contending 
parties,  to  establish  such  disputed  line  or  lines,  as  shall  appear  to 
them  right,  and  procession  the  same,  and  make  report  of  their 
proceedings  to  the  next  succeeding  court,  which  proceedings  shall 
be  recorded  by  the  clerk  of  said  court,  as  directed  by  the  above 
section  :  Provided  nevertheless,  that  either  of  the  contending 
parties  may  call  in  any  other  surveyor,  to  act  with  the  processioner, 
and  complete  such  survey,  and  the  party  against  w^hom  the  decision 
is  made  shall  pay  all  costs. 

8.  Every   person  whose  lands  shall  be  processioned  to   him,  ja.nds'have"^'^ 
according  to  the  directions  of  this  act,  at  two  several  times,  shall  been  twice  pro- 
be deemed  and  adjudged   to  be  the  sole  owner  of  the  said   lands,  deemed  the° 
and  upon   any  suit,  commenced  for  any  such  lands,  the  party  in  owner, 
possession  may  plead   the  general  issue,  and  give  this   act   in  evi- 
dence :   Provided  always,  that  the  processioning  of  the  lands  of  a  ^hatTer^sons 
tenant  for  life  shall   not  bar  or  preclude   the   heir  in   reversion  or  shall  not  be 
remainder,  neither  shall  any  processioning  bar  or  preclude  persons  p^^g^g^^y^^Yn^ 
under  age,  femes  covert,  non  compos  mentis,  imprisoned,  or  out  of 

the  State,  but  that  all  such  person  or  persons  shall  have  free  liberty 
to  sue  for  and  dispute  the  title  and  bounds  of  any  lands  within  this 

5  1792,  c.  365,  3.  6. 

6  -  1792,  c  365,  s.  7  and  8. 

7.  1799,  c.  541.— 181G,  c.  923,  s.  2. 

8.  1723,  c.  14,  s.  1  and  2. 


484 


PUBLIC   ARMS. 


[Chap.  XCII. 


State  ;  Provided,  that  the  same  person  or  persons  commence  suit 
and  prosecute  the  same  within  the  time  hmited  by  the  laws  of  the 
State,  after  the  removal  of  such  disability. 


Note. — References  to  Adjudged  Cases. 


Sect.  5.     Cansler  vs.  Hoke,  3  Dev.  268. 
Sect.  7.     Wilson  vs.  Shufford,  3  Murph.  604. 


CHAPTER  92. 


PUBL.IC    ARMS. 


AN  ACT  CONCERNING  THE  PUBLIC  ARMS. 


Section 


The  public  anns,  with  certain  excep- 
tions, to  be  deposited  in  the  public 
arsenals. 

Keeper  of  the  public  arms  to  be  ap- 
pointed— Governor  to  have  the  arse- 
nals protected. 

Governor  may  distribute  the  public 
arms  to  volunteer  companies,  upon 
the  commanding  officer  giving  bond. 

The  police  authorities  of  a  town,  or 
the  senior  colonel  of  a  county,  may 
petition  for  and  receive  arms,  upon 
giving  bond. 

How  the  public  arms  may  be  distri- 
buted in  cases  of  invasion  or  insur- 
rection . 

Duty  of  the  militia  officers  on  receiv- 
ing the  public  arms. 


Section 

7.  Penalty  for  not  keeping  the  public 

arms  in  order. 

8.  Penalty  for  selling  or  embezzling  the 

public  arms. 

9.  On  the  death,  &c.of  a  private,  his 

arms  to  be  taken  and  delivered  to 
the  person  succeeding  him. 

Militia  officers  to  demand  the  public 
arms,  when  in  the  possession  of 
those  to  whom  they  were  not  distri- 
buted. 

Detachments  ordered  into  service 
may  be  furnished  with  arms. 

The  same  regulations  prescribed  for 
the  arms  hereafter  to  be  distributed, 
to  be  applied  to  those  heretofore 
distributed. 

^t.  3 


10. 


11. 


12. 


1.   Be  it  enacted  by  the  General  Assembly  of  the  State  o/JVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same. 
The  public       That  all  the  public  arms  of  every  description,  belonging  to  the 
arms,  with  cer-  gtate,  which  have  not  been,  or  may  not  hereafter  be  distributed 
to^be^^qjosit'ed  among  the  militia,  according  to  the  provisions  of  this  or  some  other 
in  the  public     g^t  of  the  General  Assembly,  shall,  under  the  direction  of  the  ad- 
jutant general,  be  deposited  and  kept  in  the  public  arsenals  estab- 
lished at  Raleigh  and  Fayetteville,  in  such  proportions  as  the  gov- 
ernor may  prescribe. 

1.  1820,  c.  1058.— 1822,  c.  1168.— 1828,  c.  31. 


arsenal; 


Chap.  XCII.]  public  arms.  485 

2.  The  adjutant  general  shall,  at  each  place  where  an  arsenal  is  Keeper  of  the 
estabhshed,  appomt  some  suitable  person  as  keeper  of  the  pubHc  ^e  appointed." 
arms,  who  shall  be  allowed  a  reasonable  compensation  for  his  ser- 
vices, not  exceeding  sixty  dollars  per  annum  ;  and  the  governor  is  Governor  to 
hereby  authorized  and    required,  whenever   he   shall  deem  it  ex-^^^®'^^^^ 

J  1  ^  .   .       '  ,  ,  .    ,  ^      arsenals  pro- 

pedient,  to  make  such  provisions  as  he  may  think  necessary,  tortected. 
guarding  and  protecting  the  said  arsenals  ;  and  for  the  purpose  of 
defraying  the  expenses  incurred  under  these  two  sections,  the  gov- 
ernor shall  be  and  he  is  hereby  authorized  to  draw,  from  time  to 
time,  on  the  public  treasurer,  for  such  sums  as  he  may  deem 
necessary. 

3.  The  governor  may,  from  time  to  time,  direct  such  portions  Governor  may 
of  the  said  arms  as  may  be  necessary  for  arming  any   volunteer '^Jj^/p'^'^^^  ^'^^ 
company,  organized  and  equipped  according  to  law,  to  be  delivered  volunteer  com- 
to  the  commanding  officer  of  such  company,  taking  his  receipt  for  fhe^cmnmand 
the  same,  but  no  commanding  officer  of  a  volunteer  company  shall  mg  officer 

be  allowed  to  draw  arms  from  the  arsenals,   before   he   shall  have  ^^^^"^ '^°'^*^- 
given  bond,  with  two  good  securities,   if  required,  in  double  the 
appraised  value   of  the   arms,    conditioned  for  the  safe  keeping, 
cleaning  and  returning  of  the  arms. 

4.  In  case  the  public  authority  of  any  town,  or  the  senior  colo-  The  police  au- 
nel  of  any  county,  shall  petition  the  governor  for  any  number,  not  town,  or  the'* 
not  exceeding  sixtyfive  stand,  of  the  public   arms,   he   is   hereby  senior  colonel 
authorized  to  furnish  them  with  that  number  :   Provided,  bond  be  may  petition 
given,  with  approved   security,  if  required,  for  the  safe  keeping,  ^o^,  and  receive 
preservation  and  return  of  the  same  :  And  provided,  that  no   one  giving'boiid. 
county  shall  receive  a  greater  number  than  sixtyfive,  unless  in  case 

of  insurrection  or  invasion. 

5.  In  case  of  insurrection  or  invasion,  or  a  probability  thereof,  Howthepub- 
the  governor  is  authorized  to  distribute   the  public   arms    of  the  l^^g^j™^^,^™^^ 
State,  and  to  send  them  to  such  places  as  he  may  deem  necessary  in  cases  of  in- 
and  expedient,  and  to  draw  warrants,  on  the  treasurer  of  the  State,  surJectioV"' 
for  such  sums  as  may  be  necessary  for  that  purpose. 

6.  When  any  of  the  public  arms  shall  be  delivered  to  any  colo-  Duty  of  the 
nel  commandant,  for  distribution  in  his  county,  it  shall  be  the  duty  'Jnreceiving'the 
of  the  said  colonel  commandant  to  take  receipts  of  the  captains  in  public  arms, 
whose  hands  they  may  be,  or  are  placed,  and  to  give  the  necessary 

orders  for  keeping  said  arms  safe  and  in  good  order ;  and  the  cap- 
tains, when  they  distribute  the  arms  to  their  respective  companies, 
shall  take  a  receipt  at  full  length,  in  the  muster  book  of  their  com- 
panies, from  each  man,  in  double  the  value  thereof,  under  seal, 
conditioned  for  the  safe  keeping,  and  returning  of  the  arms  when 
called  for  by  the  colonel  commandant ;  which  said  muster  book, 
containing  the  receipts  for  the  arms,  shall  be  taken  good  care  of, 
and  be  subject  to  the  inspection  of  the  colonel  whenever  he  may 
desire  it,  and  on  the  death,  resignation  or  removal  of  the  captain, 
the  receipt  book  shall  be  handed  over  to  the  officer  who  may  be 
appointed  to  the  command  of  said  company. 

2.  1822,  c.  1163.— 1823,  c  31.— 1830,  c.  21,  s.  5. 

3.  1819,  c.  1027.— 1822,  c.  1168. 

4.  1830,  c.  21,  s.  2. 

5.  1830,  c.  21,.s.  3. 

6.  1831,  c.  4.5,  S.  3. 


486 


PUBLIC   ARMS. 


[Chap.  XCII. 


Penalty  for  not 
keeping  the 
public  arms  in 
order. 


Penalty  for 
selling  or  em- 
bezzling the 
public  arms. 


On  the  death, 
&c.  of  a 
private,  his 
arms  to  be 
taken  and  de- 
livered to  the 
person   suc- 
ceeding him. 


Militia  officers 
to  demand  the 
public  arms 
when  in  the 
possession  of 
those  to  whom 
they  were  not 
distributed. 


Detachments 
ordered  into 


7.  Every  non-commissioned  officer  and  private,  belonging  to 
any  company  equipped  with  public  arms,  shall  keep  and  preserve 
his  arms  and  accoutrements  in  good  order,  and  in  a  soldier-hke 
manner  ;  and  for  every  refusal  or  neglect  to  do  so,  shall  be  fined 
by  the  court  martial  of  his  company,  a  sum  not  less  than  two  nor 
more  than  ten  dollars  ;  which  fines  shall  be  laid  out  by  the  cap- 
tains for  the  repairs  of  said  arms  ;  and  if  a  company,  so  equipped, 
shall  generally  keep  their  arms  in  a  negligent  and  unsoldier-like 
manner,  the  colonel,  to  whose  regiment  the  said  company  belongs, 
shall  and  may  deprive  said  company  of  the  public  arms  and  ac- 
coutrements, and  bestow  them  on  some  other  company  belonging 
to  his  regiment  ;  which  last  mentioned  company  shall  receive,  keep, 
and  deliver  said  arms  and  accoutrements,  on  the  same  terms,  and 
under  the  same  regulations  prescribed  by  this  act. 

8.  If  any  person  or  persons,  to  whom  the  public  arms  and 
accoutrements,  or  any  of  them,  shall  be  confided,  shall  sell,  or  in 
any  manner  embezzle  the  same,  or  any  part  thereof,  and  be  thereof 
convicted  in  any  court  of  record,  he  or  they  shall  forfeit  and  pay, 
by  sentence  of  said  court,  for  the  use  of  the  State,  a  sum  not  less 
than  twenty  dollars,  nor  more  than  fifty  dollars,  for  every  stand  of 
arms  and  accoutrements  so  embezzled  or  sold  ;  and  shall  moreover 
be  imprisoned  for  a  period  not  less  than  one  month,  nor  more 
than  six  months,  and  any  person  or  persons  purchasing  any  of  said 
public  arms  and  accoutrements,  knowing  them  so  to  be,  shall  be 
prosecuted  in  the  same  manner  ;  and  shall,  on  conviction,  be  liable 
to  like  penalties  and  imprisonments  as  the  seller  or  embezzler 
thereof. 

9.  When  any  non-commissioned  officer  or  private,  belonging  to 
any  of  the  said  companies,  shall  die,  remove  from  any  county,  or 
be  excused  from  performing  military  duty,  it  shall  be  the  duty  of 
the  captain  of  the  company,  to  which  he  belonged,  immediately  to 
take  the  arms  and  accoutrements  of  the  person  so  dying,  removing 
or  excused,  into  his  possession,  and  deliver  them  to  whoever  shall 
succeed  thereto  in  said  company  ;  and  the  said  captain  shall  keep 
the  said  arms  and  accoutrements  safely  and  in  good  order,  while 
they  remain  in  his  possession. 

10.  It  may  be  lawful,  and  shall  be  the  duty  of  every  commissioned 
officer  of  the  militia  of  this  State,  whenever  and  wherever  he  shall 
see  or  learn  that  any  of  the  arms  belonging  to  the  State,  are  in  the 
possession  of  any  person  other  than  in  whose  hands  they  may  be 
placed  for  safe  keeping,  under  the  provisions  of  this  act,  to  make 
immediate  demand  of  such  arms,  either  personally  or  in  writing  ; 
and  should  such  person  refuse  to  deliver  up  such  arms  to  the 
officer  demanding  the  same,  he  shall  be  subject  to  the  same  fines 
and  penalties,  as  are  prescribed  in  this  act,  for  selling  or  embezzling 
said  public  arms. 

1 1 .  The  governor  shall  have  power   to  order  the  colonel  com- 

7.  1831,  c.  45,  s.  4. 

8.  1S31,  c.  45,  s  5. 

9.  1831,  c.  45,  s.  6. 

10.  1S3I,  c.  45,  S.7. 

11.  1831,  C.  45,  s.  8. 


Chap.  XCIIL]  public  arms.  487 

mandant  of  the  county,  where  any  of  the  pubUc  arms  may  be  f^J^jg^'g^^^jj^® 
distributed,  to  place  the  same  in  the  hands  of  any  detachment  of  arms, 
mihtia,  ordered   into  the  service  of  this  State,  or  of  the  United 
States,  if  the  same  shall  by  him  be  deemed  necessary. 

12.  The  same  rules,  regulations  and  penalties,  as  are  prescribed  The  same  reg- 
in  the  sixth,  seventh,  eighth,  ninth  and  tenth  sections  of  this  act,  sCTibeK The 
in  relation  to  the  public  arms  hereafter  to  be  distributed,  shall  be  arms  hereafter 
applied  and  enforced  as  to  the  arms  heretofore  distributed,  unless,  ^^g^j*^  to^b"ap- 
in  the  act  authorizing  such  distribution,  there  be  other  and  different  plied  to  those 
provisions,  inconsistent  with  those  herein  contained.  tribut°ed!^^ 

12.  Amendment- 


CHAPTER  93. 


AN  ACT  CONCERNING  THE  PUBLIC   ARMS  NOW  IN  THE  ARSENALS 

AT  RALEIGH  AND  FAYETTEVILLE.  ^   / 

Section 

send   for   the  arms   and  distribute 

them. 
4-  Upon  the  dissolution  of  a  volunteer 

company,  the  arms  to  be  delivered 

to  the  colonel. 
5.  Expenses  of  repairing,  &c.  arms,  how 

to  be  paid. 


Section 

1.  Adjutant  general  to  have  the  public 

arms  repaired,  &c. 

2.  The   public   arms    to    be    deposited 

at    certain    places,     for    distribu- 
tion. 

3.  Adjutant  general  to  inform  the  senior 

colonel  of  each  county,  who  shall 


1.  Be  li  e7iacted  by  the  General  Assembly  of  the  State  of  JVortk 
Carolina.,   and  it  is  hereby  enacted   by  the   authority  of  the  sanie^ 

That  it  shall  be  the  duty  of  the  adjutant  general,  and  he  is  hereby  Adjutant  gen- 
authorized,  to  employ  some  well  qualified  artist,  at  as  low  a  price  *^'"^\-^°  ^'^^'^^^^^ 

•11  -1  11-  -1  1  -n    1    •    1    PuWic  arms  re- 

as  possible,  to  repair  the  public  arm*  now  in  the  arsenals  at  Kaleigh  paired,  &,c. 
and  Fayetteville,  and  to  have  each  musket  and  rifle  deeply  stamped 
with  the  letters  N.  C. 

2.  When  the  said  arms  are  so  stamped,  and  in  proper  order  for  Public  arms  to 
service,  they  shall  be  deposited  by  the  adjutant  general  at  the  fol- ^t  cljnafif  ^*^ 
lowing  places  of  depot,  viz  :  At  Morganton,  six  hundred  and  thirty-  places  for  dis- 
five  rifles,  to  be  distributed,  one   hundred  and  five  to  each  of  the  ^"'^"^'°"' 
counties  of  Rutherford,  Burke,  Buncombe,  Yancey,  Haywood  and 

Macon.  At  Salisbury,  one  thousand  one  hundred  and  fifteen 
rifles,  and  three  hundred  and  six  muskets,  to  be  distributed,  one 
hundred  and  five  rifles  to  each  of  the  counties  of  Rowan,  Wilkes, 
Davie,  Davidson,  Lincoln,  Iredell,  Stokes,  Surry,  Ashe,  Cabar- 
rus and  Mecklenburg  ;  and  one  hundred  and  two  muskets  to  each 

1.  1836,  c.  34,  s.  1. 

2.  1836,  c.  34,  s.  2. 


488  PUBLIC  ARMS.  [Chap.  XCIII. 

of  the  counties  of  Guilford,  Randolph  and  Montgomery.     At  Fay- 
etteville,  eight  hundred  and  sixteen  muskets,  to  be  distributed,  one 
hundred  and  two  to  each  of  the  counties  of  Cumberland,  Moore, 
Anson,  Richmond,   Robeson,  Columbus,   Bladen   and    Sampson. 
At  Wilmington,  three  hundred  and  six  muskets,  one  hundred  and 
two  to  each  of  the  counties  of  New  Hanover,  Brunswick  and  Du- 
plin.    At  Raleigh,  eight  hundred  and  sixteen  muskets,  to  be  dis- 
tributed, one  hundred  and   two  to  each  of  the  counties  of  Wake, 
Johnston,  Franklin,  Orange,  Person,  Chatham,   Rockingham  and 
Caswell.     At  Newbern,  six  hundred   and  twelve   muskets,  to  be 
distributed,  one  hundred  and  two  to  each  of  the  counties  of  Cra- 
ven, Carteret,   Jones,    Lenoir,  Wayne  and  Onslow.     At  Wash- 
ington, five  hundred  and  ten  muskets,  to  be  distributed,  one  hun- 
dred and  two  to  each   of  the  counties  of  Beaufort,  Hyde,  Pitt, 
Greene  and  Edgcomb.      At  Elizabeth  City,  five  hundred  and  ten 
muskets,  to  be  distributed,  one  hundred  and   two   to  each  of  the 
counties  of  Camden,  Currituck,  Tyrrel,   Pasquotank  and  Perqui- 
mons.     At  Plymouth,  six  hundred  and  twelve  muskets,  to  be  dis- 
tributed, one  hundred  and  two  to  each  of  the  counties  of  Wash- 
ington, Bertie,  Hertford,  Martin,  Gates  and  Chowan.     At  Halifax, 
five  hundred  and  ten  muskets,  to  be  distributed,  one  hundred  and 
two  to  each  of  the  counties  of  Halifax,  Nash,  Northampton,  War- 
ren and  Granville.     And  the  adjutant  general  is  hereby  authorized 
to  employ,  at  each  of  the  above   depots,  an  agent  to  receive  and 
distribute  the  said  arms. 
Adjutant  ^en-        3.   The  adjutant  general  shall  forthwith  inform  the  senior  col- 
erai  to  inform    onel  of  the  several  counties,  at  what  depot  the  quota  belonging  to 
colonel  of  each  his  county  may  be,  who  shall   send  for  the  said  arms,  and  receipt 
^°"nty,  who      ^Q  tj^g   adjutant   general  therefor.     The   colonel  shall  deposit  the 
the  arms  and     arms  with  One  or  more  companies  of  his  regiment,  and  take  the  cap- 
distribute  them,  t^ij^g'  receipt  therefor  ;  and  each  soldier  shall  sign  the  receipt  for 
his  musket  or  rifle  in  the  muster  book  ;  and   the  expenses  of  con- 
veying the  arms  from  the  depots  shall  be  paid  out  of  the  fines,  col- 
lected  in  the   company  or    companies  receiving  the   said  arms. 
When  any  soldier,  from  age   or  any  other  cause,  leaves  the  com- 
pany, he  shall  hand  over  the  musket   or  rifle  to  the  captain  ;  and 
any  person,  selling  a  musket  or  rifle  stamped  as  aforesaid,  shall  be 
subject  to  indictment  in  any  court,  and  be  fined  and  imprisoned  at 
the  discretion  of  the  court. 
Upon  the  dis-        4.   When  any  volunteer  company,  which  has   been  or  may  be 
solution  of  a    incorporated,   shall   be  dissolved,  the  muskets  or  rifles   shall  be 
pany,  the  arms  delivered  over  to  the  colonel,  and  by  him  disposed  of  as  hereto- 
to  be  delivered  fore  directed. 

to  the  colonel.  -,      mi  c  •   •  i      ^  •  ^i  t-T 

Expenses  of  '•    J- he  expenses  ot  repairing  and  stampmg  the  public  arms,  in 

repairing,  &c.    pursuance  of  this   act,   and  also  of  removing  them   to  the  several 
paid.'        °  ^  depots,  shall  be  paid  by  the  treasurer,  on  the  warrant  of  the  gov- 
ernor. 

3.  I836»c,  34,  s.  3. 

4.  1836,  c.  34,  s.  4. 

5.  1836,  c.  34,  s.  5. 


Chap.  XCV.]         public  documents. 


489 


a 


Lii<.IBuildu,^^'J^^J;^^/^^l.^^_ 


CHAPTER  94. 


PUBL.IC   DOCUMS^NTS. 


AN  ACT  DIRECTING  THE  MANNER  IN  WHICH  THE  LAWS  OF  CON- 
GRESS, AND  OTHER  PUBLIC  PRINTED  DOCUMENTS,  TRANSMITTED 
TO  THIS  STATE  BY  THE  GENERAL  GOVERNMENT,  SHALL  BE  DIS- 
TRIBUTED. 

Be  it  enacted   by  the   General  Assembly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  the  laws  of  congress,  and  all  the  other  public  printed  documents,  How  the  pub- 
transmitted   to   this  State  by  the   general  government,  which  now  |j.ansm"ued  ^bv 
are,  or  hereafter  may  be,  in  the  possession  of  the   State,  shall   be  the  general 
distributed  by  the   secretary  of  state  in   the  following  manner,  to  fhaU  bcTdis- 
wit :  two  copies  to  each  of  the  counties  in  the  State,  which  shall  tributed. 
be  deposited  in   the   offices  of  the  superior  and   county  courts  in 
each  county,  for  the  use  of  the  said  courts  respectively  ;  one  copy 
to  each  and  every  judge  of  the  supreme  court,  and  the  superior 
courts  of  law  and  equity  ;  one  copy  to  the   attorney  general  ;  one 
copy  to  each  and  every  solicitor  ;  one  copy  in  the  offices  of  gov- 
ernor,    secretary    of    state,    treasurer    and    comptroller  ;    three 
copies   in   the   library  of  the  university  of  this    State  ;   and  three 
copies  retained  in   the   public   library,  for  the  use  of  members  of 
assembly,  and  other  public  functionaries. 

1823,  c.  1,  s.  1. 


CHAPTER  95. 


PUBLIC    PRINTING. 


AN  ACT  CONCERNING  THE  PUBLIC  PRINTING  OP  THE  STATE. 


Section 

1.  The  secretary  of  state  to  let  out  the 
printing  of  the  acts,  &c.  of  the  legis- 
lature— To  let  out  the  journals  sep- 
arate from  the  acts. 

VOL.  I.  62 


Section 

2.  Also,  the  printing  to  be  done  for  either 

or  both  houses  of  the  General  As- 
sembly. 

3.  Persons  contracting,  to  give  bonds,  &c. 


(3-^ 
^ 


490 


PUBLIC    PRINTING.  [ChaP.  XCV. 


Section 

4.  The  secretary  of  state  to  file  the  pro- 

posals with  the  governor. 

5.  What  number  of  the  acts  and  jour- 

nals shall  be  printed,  and  how  they 
shall  be  distributed. 

6.  The  public  acts  to  be  printed  sepa- 

rate from  those  of  a  private  nature 
— What  to  be  published  with  them. 

7.  Within  what  time  copies  of  the  acts 

and  journals  shall  be  furnished  to 
the  printer,  and  by  whom — Within 
what  time  to  be  printed. 


Section 

8.  Secretary  to  have  thAn  delivered. 

9.  Governor,    treasurer,    &,c.    to    have 

blanks,  &c.  printed  for  their  offices. 

10.  In  what  form  the  acts,  &.c.  shall  be 

printed. 

1 1 .  The  secretary  of  state  to  keep  a  book 

for  the  names  of  the  justices  of  the 
peace  in  the  Stale. 

12.  Advertisements,  where  to  be  made 

in  certain  cases. 


n-^^-    cLy^-f 


1.   3^  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina,  and  it   is  hereby  enacted  by  the    authority  of  the  same, 
That  hereafter  it  shall  be  the  duty  of  the  secretary  of  state  to  let 
the  prim-    Out,  to  the  lowest  bidder,  the  printing  of  the   acts  and  resolutions 
of  the  acts,  of  the  G  eneral  Assembly,  passed  at  each  and  every  session  thereof ; 
ture.      "'  to  let  out  also,  separate  and  apart  from  the  acts,  the  printing  of  the 
To  let  out  the   journals  of  the   senate  and  house   of  commons  ;  and  the  manner 


The  secretary 
of  state  to  let 
out  the  print- 
ing 

&c.  of  the 
islature 


arate 
acts 


■"""TfromThe  of  letting  out  the  said  printing  shall  be  as  follows  :  the  secretary  of 

state  shall  give  reasonable  notice,  and  receive  sealed  proposals  in 

writing  for  the  printing  aforesaid,  under  such  rules  and  regulations 

as  he  may  prescribe. 

rint-      2.   The  secretary  of  state  shall  also  let  out  to  the  lowest  bidder, 


Also,  the 
ing  to  be  done 
for  cither  or 
both  houses  of 
the  General 
Assembly. 


Persons  con- 


by  the  printed  page,  the  public  printing,  which  shall  be  required 
to  be  done  by  either  or  both  houses  of  the  General  Assembly, 
jointly  or  separately,  during  the  session,  in  the  manner  prescribed 
in  the  foregoing  section,  and  communicate  to  the  General  Assem- 
bly, on  the  second  day  of  their  session,  the  name  of  the  person  or 
persons  with  whom  the  said  agreement  shall  be  made. 

3.   The  person  or  persons,  with  whom  the   contract  aforesaid 
tracting,  to  give  shall  be  made,  shall  give  bond,  payable  to  the  State,  in  the  sum  of 
^'    ^'       one  thousand  dollars  on  each  contract,  (with  approved  security,) 
conditioned  to  perform  faithfully  the  contract  so  made  with  him  or 
them,  within  the  time  and  in  such  manner  as  shall  be  prescribed  by 
law.     The  bonds,  and  the  security  to  said  bonds,  must  be  accepted 
and  approved  by  the  governor,  and  the  same  shall  be  endorsed  on 
the  bonds,  after  which  they  shall  be  filed  in  the  office  of  the  sec- 
retary of  state. 
The  secretary        4.   The  secretary  of  state  shall  file   with  the  governor,  all  the 
of  state  to  file  proposals,  which  shall  be  made  to  him  for  doing  the  printing  afore- 

with  the  gov-     said. 

wh"t       b  ^'   'I'^®''^  's\]2\\  be  a  sufficient  number  of  the  journals  of  each 

of  the  journals  sessiou  of  the  General  Assembly,  to  supply  each  member  thereof 
and  acts  shall ^^yjj}^  One  copy,  and  the  offices  of  the  governor,  treasurer,  secre- 
how  they  shall  tary  and  comptroller,  and  the  clerks  of  the  county  courts  of  this 
be  distributed,   gjajg^  •^\^]^  each  a  copy,  and  one  other  copy  for  each  of  the  clerks 


1.  1836,  c.  3S,  s.  1. 

2.  1836,  c.  33,  s.  2. 

3.  1836,  c.  38,  s.  3. 

4.  183G,  c.  38,  s.  4. 
u.  1836,  c.  33,  s.  5. 


Chap.  XCV.]  public  printing.  491 

of  the  General  Assembly  ;  a  sufficient  number  of  the  acts  passed 
at  each  session,  to  serve  each  member  of  the  General  Assembly 
with  one  copy  ;  also  one  copy  for  each  of  the  public  officers  and 
clerks  as  aforesaid,  one  copy  for  each  judge  and  clerk  of  the 
supreme  and  superior  courts,  one  for  the  attorney  general  and  each 
of  the  solicitors,  one  for  every  clerk  and  master  of  equity,  and  for 
every  justice  of  the  peace  and  sheriff  throughout  the  State,  and 
one  copy  of  the  public  laws  for  the  executive  of  each  state  and  ter- 
ritory in  the  Union. 

6.  The  public  laws  shall  be  printed  separate  from  the  laws  of  a  J^^^/jJiJ^'^g^^'^ 
private  nature,  leaving  a  blank  page  between  the  public  and  private  separate  from 
laws,  and  there  shall  likewise   be  printed,  in   the  margin  of  each  pj.°^^j°  ^^^^.^^ 
page,  the  year  in  which  the  laws  were  passed.      The  printer  shall  what  to  be 
also  attach  to  the  acts  of  the  General  Assembly,  the  statement  of  P^^'^®'^  ^''^^^ 
the  revenue  of  North  Carolina,  agreeably  to  the  comptroller's  state- 
ment, and  an  index  of  the  laws. 

7.  The  secretary  of  state  shall,  within  thirty  days  from  the  rise  of  Within  what 
each  General  Assembly,  furnish  the  printer  with  complete  copies  of  ^^^g^g^g^^Jj^^^" 
all  the  laws  ;  and  the  clerks  of  each  house  shall,  within  twenty  days  journals  shall 
after  the  same  time,  deliver  to  the  printer  complete  copies  of  the  ^j^g  pj."jj^g^  j^j|^ 
journals  of  each  house  ;  and  it   shall  be  the  duty  of  the  printer  to  by  whom, 
have  such  laws  and  journals  of  each  session  printed,  and  when  thus 

finished  and  addressed  to  those  entitled  to  receive  them,  he  shall  „^. , .      , 

,  ,  11-  1       r  1  II       Within  what 

cause  them  to  be  packed  up   m  parcels  tor  each  county,  and  de-  time  to  be 
livered,  within  ninety  days   from  the  close  of  each  session,  to  the  pri"ted. 
secretary  of  state. 

8.  The  secretary  of  state   shall  employ  a  trusty  person  or  per- .^"^cretary  to 

I13.VC  tncni  uc- 

sons,   to  carry  to  the   clerks  of  the   several   county  courts,   or  to  livered. 
some  person  in  their  behalf,  the  copies  of  the  journals  and  acts  of 
assembly,  hereby  directed  to  be  distributed,  on  the  cheapest  and 
best  terms  he  can. 

9.  The  governor,  treasurer,  comptroller  and  adiutant  general  of^°^''™°''' 
this  State  are  authorized  to  have   printed   for  their  several  offices,  to  have  blanks, 
such  blanks  and  other  necessary  printing,  as  may  be   suitable  and '^'^•.P™^*''^  ^""^^ 
proper  to  enable  them  to  discharge  the  duties  required  of  them  by 

law  ;  and  the  amount  for  which  printing  shall  be  reasonable  and 
just,  to  be  judged  of  and  allowed  by  the  board,  to  be  composed  of 
the  governor,  secretary  of  state,  treasurer  and  comptroller. 

10.  The  journals,  acts  of  assembly,  reports  of  committees,  and  JV^'^^'^  ^?"^ 
other  documents  printed  for  the  assembly,  shall  be  printed  in  octavo  shall  be' print- 
form.  ^''• 

11.  A  book  shall  be  kept  by  the  secretary  of  state,  in  which  the  The  secretary 
names  of  each  justice  of  the  peace  shall  be  recorded  ;  and  by  the  a  booVfor  the^' 
list  so  kept,  the  acts   aforesaid   shall   be   distributed  ;  and  when  a  names  of  the 

/  ,  .  1     11  •  1-  1  •        m       lustices  ot  the 

justice  oi  the  peace  m  any  county  sliall  resign  or  die,  or  his  office  peace  in  the 
otherwise  become  vacant,  it  shall  be  entered  therein.  nitne. 

6.  1S36,  c.  38,  s.  6.      ■ 

7.  1836,  c.  38,  s.  7. 
8-  1836,  c.  33,  s.  8. 
9.  183S,  c.  33,  s.  9. 

10.  1836,  c.  38,  s.  10. 

1 1.  1636,  c  38,  S.  11. 


492 


QUARANTINE    AND    HEALTH.  [ChAP.  XCVE. 


Advertisements  12.  In  all  cases  where  advertisement  is  now  required  by  law  to 
madrin'certain  ^6  made  in  the  State  Gazette,  the  same  may  be  hereafter  made  in 
cases.  any  newspaper  printed  at  the  seat  of  government. 

12.    1S36,  C.  39,  s.  1. 


CHAPTER  96. 


QUARANTINE  AND  HEALTH. 


AN  ACT  CONCERNING  QUARANTINE,  AND  TO  PREVENT  THE  INTRO- 
DUCTION AND  COMMUNICATION  OF  CONTAGIOUS  DISEASES. 


Section 


1.  Who    may  direct    quarantine,   and 

when — Masters  and  pilots  of  ves- 
sels to  report — Duty  of  those  order- 
ed to  perform  quarantine — Penal- 
ties. 

2.  Vessel  coming  from  an  infected  place, 

to  anchor  at  quarantine  ground — 
Coming  into  port  without  permis- 
sion, the  master  or  pilot  indictable. 

3.  Force  may  be  used  to  remove  such 

vessel. 

4.  Port  j'hysicians  may  be  appointed. 

5 .  Penalty  for  passengers  or  crew  break- 

ing quarantine. 

6.  Penalty  on  persons  going  on  board 

without  permission — Penalty  on 
master  for  permitting  it—  Such  per- 
sons may  be  ordered  to  remain  on 
board. 

7.  Persons  breaking  quarantine  may  be 

arrested  and  sent  back. 

8.  Penalty  for  landing  any  articles. 

9.  Oath  may  be  required  of  the  master — 

Penalty  for  giving  a  false  certificate. 


Section 

10.  Provisions  to   be   furnished  vessels 

under  quarantine. 

1 1 .  How  penalties  recovered  and  applied. 

12.  Penalty  on  pilots  in  certain  cases. 

13.  Commissioners   of   navigation   may 

appoint  harbor  masters  and  health 
officers,  and  enact  bylaws  and  regu- 
lations. 

Commissioners  of  seaport  towns  to 
have,  in  certain  cases,  the  authority 
of  commissioners  of  navigation. 

What  shall  be  considered  nuisances 
in  the  seaport  towns. 

16.  Owners  of  lots  in  seaport  towns  to 

keep  them  drained  at  certain  sea- 
sons— Penalty  for  neglect— Com- 
missioners may  remove  the  nuisance 
at  the  expense  of  the  owner. 

17.  Officers   of   police   in    incorporated 

towns,  to  adopt  measures  for  pre- 
venting contagious  diseases. 

18.  Proviso  to  the  foregoing  section. 


14. 


15. 


Who  may  di 
rect  quarantine 
and  when. 


I.  Be  it  enacted  by  the  General  Assembly  of  the  State  of 
JYorth  Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the 
same,  That  the  commissioners  of  navigation  in  the  respective  ports 
'and  inlets  of  this  State,  and,  where  there  are  no  commissioners, 
any  three  justices  of  the  peace  convenient  to  said  ports  or  inlets, 
or  the  commissioners  of  any  seaport  town,  shall  meet  together  and 
appoint  such  place  or  places,  as  they  may  think  proper,  for  ves- 
sels  to   perform  quarantine,  and  when  a  vessel  shall  arrive  at  any 


1.   178a,  c.  194,  s.  12.— 1793,  c.  379,  !?.  1.— 1802,.c   024. 


Chap.  XCVL]  quarantine  and  health.  493 

of  the  said  ports  or  inlets,  having  an  infectious  distemper  on  board,  Masters  and 
or  which  came  from  any  place  that  was,  at  the  time  of  her  sailin^-,  pH°^^  °^  ''^^■ 
or  shortly  before,  infected  with  any  malignant  disorder,  the  master  '^ '  ^°  '^^°'^' 
and  pilot  of  the  vessel  shall  anchor  her  at  the  place  so  appointed, 
and  give  immediate  information  thereof  to   the   commissioners  of 
navigation,  or  to  the  commissioners  of  the  seaport  town,  or,  where 
there  are  no  conmaissioners,  to  the  nearest  justice  of  the  peace, 
who,  with  two  others  to  be  summoned  by  him,  or  any  three  of  the 
commissioners  aforesaid,  or  any  one  commissioner  and  two  justices, 
or  any  one  justice  and  two  commissioners,  shall  thereupon   cause 
such  vesseland  her  crew  to  be  examined   by  at  least  one  experi- 
enced physician,  where  to  be  had,  upon  whose  report  in  writing, 
(which  said  physician  is  required  to  make,)  and  on  other  informa- 
tion they  may  receive,  it  shall  and  may  be  lawful  for  any  three  of  such 
commissioners,  and  where  no  commissioners,  any  three  nei«-hbor- 
ing  justices,  or  any  one  commissioner  and  two  justices,  or  any  one 
justice  and  two  commissioners,  or  the  commissioners  of  the  town 
to  which  such  vessel  is  bound,  to  order  and  command  the  master 
of  the  vessel,  crew  and  passengers  to  perform   quarantine,   as  by 
them  shall  be  deemed  most  proper  and  requisite,  to  check  or  pre- 
vent  any  infectious  distemper  from  spreading  in  this  State  ;  and  SSe°/ t*per- 
every  person  on  board  such  vessel,  directed  to  perform  quarantine,  f?™  quaran- 
shall  from  time  to  time,  during  such  quai'antine,  obey  all  and  every  ^""'' 
order  given  by  the  authority  of  the  said  commissioners  or  justices, 
respecting  the  victualling,  purifying  and  cleansing  of  such  vessel, 
and  all  persons  and  articles  on  board,   and   the  intercourse  of  the 
said  persons  with  the  inhabitants   of  this   State,  the  receiving  any 
person  on  board,  or  the  putting  them  on  shore  ;  and  the  said  pilot  or 
master,  neglecting  or  refusing  to  give  such  information  as  above  re-  Penalties, 
quired,  the  pilot  for  such  neglect  or  refusal  shall  forfeit  and  pay  the 
sum  ol  one  hundred  dollars,  and  the  master  for  the  like  neglect  or 
refusal  shall  forfeit  and  pay  the  sum  of  two  hundred  dollars.     And 
in  case  the  master  of  any  vessel,  so  ordered  to  perform  quarantine, 
shall  refuse  to  comply  with,  or  fail  to  fulfil  the  orders  of  the  com- 
missioners or  justices  of  the  peace,  for  performing  quarantine  with 
his  vessel  as  aforesaid,  he  shall  forfeit  and  pay  the  sum  of  two  hun- 
dred dollars  for  each  day  he  shall  fail  to  proceed  and  perform  the 
quarantine,  ordered  by  the  commissioners  or  justices  of  the  peace 
as  in  this  act  directed  ;  for  which  forfeiture  or  forfeitures  the  prop- 
erty of  said  captain,   with  the  vessel   and  cargo,  shall  be  liable  • 
Provided,  it  shall  appear  that  the  breach  of  the  order  of  the  com- 
missioners or  justices  as  aforesaid,  was  by  the  consent  of  the  owner 
or  consignee,  but  if  the  owner  or  consignee  did  not  consent,  then 
the  master  of  such  vessel  only  shall  be  liable  ;  to  be  recovered  and 
applied  m  such  manner  as  hereinafter  directed. 

2.   If  any  vessel   shall  be   brought  into  the  State  from  a  place,  J^ssel  coming 
which,  at  the  thne  of  her  departure,  was  infected  with  the  yellovv  eZlacVtf ''' 
lever,  small  pox  or  other  infectious  disorder,  or  if  any  vessel    ar-  ^"''^'°''  ^^  'i"^''" 
riving  in  this  State,  shall  have  the  small   pox   or  yellow  fever  or  '"'''''  ^"™''" 
other  infectious  disorder  on  board,  or  shall  have  had  such  disorder 


2.    1?17,  c.  9-lfi,  s    i. 


494  QUARANTINE    AND    HEALTH.   [ChAP.  XCVI. 

on  board  during  her  passage  to  this  State,  such  vessel  shall  be 
anchored  at  the  place  appointed  for  quarantine,  and  there  remain, 
until  permitted  to  remove  by  the  commissioners  of  navigation,  or  by 
the  commissioners  of  the  town  to  which  said  vessel  is  bound,  or 
Coming  into  by  the  justices  aforesaid  ;  and  if  any  such  vessel  shall  come  to 
port  without     such  towD  or  into  its  harbor,  without  permission  obtained  as  afore- 

permission,  the      •  i        i  -i  i        •  •  i  ^  i      • 

master  or  pilot  said ,    the   pilot   oi'  master,   conductmg  said  vessel  or  ordering  or 
indictable.        permitting  her  to  be  so  conducted  to  such  town  or  harbor,  shall  be 
subject  to  indictment  in  the  court  of  pleas  and  quarter  sessions,  or 
superior  court,  of  the  county  in  which  said  offence  is  committed, 
and  upon  conviction  shall  be  fined  not  less  than  one  thousand  dol- 
lars, and  be  subject  to  imprisonment  until  such  fine  and  costs  are 
paid  :  Provided,  such  imprisonment  shall  not  exceed  one  year. 
Force  may  be        3.   The  Commissioners  of  navigation,  or   the  commissioners  of 
such  vessels°^^  ^^^®  town,  in  the  harbor  of  which  any  vessel  shall  have  arrived  in 
violation  of  this  act,  or  the  justices  as   aforesaid,  shall  have  power 
and  are  authorized  to  use  such  force  as  shall  be  necessary  to  re- 
move said  vessel   to  the   place  of  quarantine  ;    their  reasonable 
charge  for  which  service  shall  be  paid  by  the  master  or  owner  of 
said  vessel,  and  may  be  recovered  of  either  of  them  before  any 
jurisdiction  having  cognizance  thereof. 
Port  physicians      4.   The  commissioners  of  navigation  in  the  several  ports  of  this 
pomted.^^'       State,  and,  where  no   such   commissioners,  the  commissioners  of 
the  several  seaport  towns,  shall  be  and  they  are  hereby  authorized 
and  empowered   to  appoint  port  physicians,  and  to  regulate   and 
prescribe  the  fees  to   which  they  shall  be  respectively  entitled, 
according  to  the  different  quarantine  stations,  which  they  shall  be 
bound  to  attend  for  the  purpose  of  inspecting  vessels,  as  required 
by  this  act,  and  giving  certificates  of  their  situation  and  condition, 
in  regard  to  the  health  of  their  respective  crew  and  passengers. 
Penalty  for  5    When  any  vessel  shall  be   directed  to  perform  quarantine  as 

passengers  or       ~  .  ,  ,    •'  in  i  i 

crew  breaking  aioresaid,  and  any  seaman  or  passenger  shall,  contrary  to  the  order 

quarantine.       ^^^  direction  of  the   commissioners  or  justices  of  the  peace  as 

aforesaid,  leave  the  said  vessel   and  land  on  any  other  place  than 

the  said  commissioners  or  justices  shall   allow  of,  each  and  every 

person  so   offending  shall  forfeit  and  pay  the  sum  of  two  hundred 

dollars  for  each  and  every  offence,  and  when  the  person  or  persons 

offending  shall  not  be  able  to  pay  the  said  forfeiture,  and  it  can  be 

made  appear  that  they  left  the  vessel  with  the  master's  consent, 

either  express  or  implied,  the  said  master  shall  be  hable  to  pay  the 

said  penalty  of  two  hundred   dollars,   for   each    and  every   such 

offence  of  any  of  his  passengers  or  seamen. 

Penalty  on  per-      6.   When  any  vessel  shall  be,  as  aforementioned,  directed  to 

on'bolXwith-  perform  quarantine,  and  any  person,  knowing  of  such  order,  either 

out  permission,  by  the  information  of  the  master  or   otherwise,  shall  go   on  board 

of  such  vessel  without  permission  of  the  commissioners  or  justices 

aforesaid,  each  and  every  person  so  going  on  board,  shall  forfeit  and 

pay  the  sum  of  one  hundred  dollars.      And  if  any  person  shall  be 

3.  1817,  c.  OIG,  s.  2. 

4.  1802,  c.   024,  s.   2. 

r..  I7'.i;5,  c.  ;37'.),  s.  2. 

0.   1703,  C.  379,  s    3. 


Chap.  XCVL]  quarantine  and  health.  495 


permitted  by  the  master  of  such  vessel  to  come  onboard,  without  Penalty  on 

"     "  "  -     -  -  .  -  master  for 

permitting  it. 


informing  him  or  them  of  the  order  and  directions  of  the  commis-  ™^*^^'"  ^°^ 


sioners,  or  justices  of  the  peace,  the  said  master  shall  be  liable  to 
pay  the  sum  of  two  hundred  dollars  for  each  and  every  person  so 
ofi'ending,  and  the   sum  of  four  hundred  dollars  for  suiFering  any 
person  so  on  board  to  depart  his  vessel,  without  leave  of  the  com- 
missioners  or  justices  aforesaid,  and   the  said   commissioners  or 
justices  are  hereby  empowered  to   order  every  person  who   shall  3^^.]^  persons 
go  on  board  any  such  vessel,  to   remain  there  for  such  length  of  may  be  ordered 
time  as  they  may  think  proper,  and  if  he   disobey  such  order,  he  board!^''^  "'^ 
shall  be  liable  to  pay  the  sum  of  one  hundred  dollars. 

7.  The  commissioners  or  justices  aforesaid  shall  be,  and  theyP^^'sons  break- 
er a  majority  of  them  respectively  are  hereby  empowered  to  issue  may  be  arrest^-' 
their  warrant  to  any  sheriff  or  other  lawful  officer,  commanding  him  ^^  ?|^<i  sent 

to  take  the  body  of  any  person  that  may  have  left  any  vessel, 
ordered  as  aforesaid  to  ride  quarantine,  and  carry  or  cause  to  be 
carried  him  or  her  on  board  of  said  vessel,  and  the  said  officer  is 
hereby  empowered  to  summon  such  persons  to  assist  him  in  the 
execution  of  said  warrant,  as  he  may  think  fit. 

8.  If  any  master  of  a  vessel,  ordered   to  ride  quarantine,  shall  Penalty  for 
convey,  cause  or  permit  to  be  conveyed,  any  article  or  articles  of  ti^ies"^  ^"^^'^' 
goods,  wares  and   merchandise   from   on  board   his   vessel  on  any 

other  land,  or  into  any  other  boat  or  vessel,  than  the  said  commis- 
sioners or  justices  shall  authorize,  he  shall  be  hable  to  pay  the  sum 
of  two  hundred  dollars  for  each  and  every  offence.  And  any 
other  person,  so  conveying  or  causing  to  be  conveyed  any  article 
or  articles  as  above  mentioned,  shall  be  liable  to  the  like  penalty  in 
like  manner. 

9.  The  said   commissioners   or   justices  may,   whenever   they  Oath  may  be  re- 
think proper,  require  from  any  master  of  a  vessel,  on  his  arrival  in  l^asTer"'  ^^^ 
this  State,  to  declare   on  oath  the   state  of  the  health  of  himself, 

crew   and    passengers,  and  of  the  place   from  whence   he  came. 
And  if  any  master  shall  give  a  false  declaration,  or  any  physician  pen^l^f^^ 
shall  wilfully  give  a  false  certificate  of  the  health  of  the  persons  on  giving  a  false 
board  any  vessel  so  arriving,  he  shall  forfeit  and  pay  the  sum  of '^^'^^^  '^^^^' 
two  thousand  dollars. 

10.  The  commissioners  or  justices  are  hereby  empowered  and  Provisions  to  be 
directed  to  furnish  any  vessel,  ordered  to  ride  quarantine  as  afore- ^"y"^*^!^**  ^'^®" 
said,  with  a  surncient  quantity  of  good  wholesome  provisions,  i or  quarantine. 
the   expense  of    which,   the   master,   vessel   and  cargo   shall   be 

liable. 

11.  All  fines,  penalties  and  forfeitures  imposed  by  this  act,  may  How  penalties 
be  recovered  by  action  of  debt,  or  on  the  case,  in  any  court  having  apXeT'^  ^^^ 
cognizance  thereof,  one  half  to  the  informer,  the  other  half  to  be 

applied  by  the  commissioners  of  navigation,  for  the  use  and  benefit 
of  the  navigation  of  the  port,  within  whose  jurisdiction  the  fine, 
penalty  or  forfeiture  may  have  been  incurred. 

7.  1793,  c.  379,  S.  4. 

8.  1703,  c.  379,  s.  5. 

9.  1793,  c.  379,  S,  6. 

10.  1793,  c.  379,  s.  7. 

11.  1753,  c.  379,  s.  8. 


496  QUARANTINE    AND    HEALTH.   [ChaP.  XCVI. 

Penalty  on  12.   If  any  pilot  shall  bring  any  vessel  beyond  the  place  fixed 

^ases."^*^^'^  ^^"^i^f^  li™'ted,  or  to  be  fixed  and  limited,  by  the  commissioners  of 
navigation,  without  a  certificate  of  the  health  officer,  declaring  that 
there  is  no  danger  to  be  apprehended  from  any  contagious  or  in- 
fectious disease  on  board  said  vessel,  such  pilot  shall  forfeit  his 
branch  or  commission,  and  from  thence  be  deemed  incapable  to 
act  as  a  pilot  in  any  port  of  this  State. 
„        .    .  13.    The   commissioners    of  navigation    of  the   several  seaport 

Commissioners  •       i  •     o  i     u   i  •  i       i  i 

of  navigation    towns  in  this  btatc,  shall  have  power  to  appoint  a  harbor  master  and 
may  appoint     health  officer,  to  prescribe  their  duties  and  authority,  to  make  rules 
and  health  of-    and  regulations  for  their  government,  allow  them  a  reasonable  com- 
b°  laws  "and"  ^°^  pensation  for  their  services,  and  determine  how  and  by  whom  such 
regulations.      compensation  is  to  be  paid.      And  said  commissioners  shall  have 
power  to  pass    such  bylaws  (not  inconsistent  with   the  laws   and 
constitution  of  this  State   and  the  United   States.)  for  the  better 
regulation  of  the  quarantine  to  be   performed   by  vessels,  arriving 
from  ports  which  may  be   infected,    or  suspected  to  be  infected 
with  any  contagious  disease,  and  for  the  purpose  of  preventing  all 
intercourse  between  such  vessels  and  persons  on  shore,  as  to  them 
may  seem  meet  and  proper,  and  to  enforce  obedience  to  such  by- 
laws, by  imposing  such  penalties   as  they  may  think  proper,  which 
penalties  so  imposed  by  them  may  be  recovered  as  other  penalties 
incurred  under  this  act,  and  shall  be  disposed  of  in  the  same  man- 
ner and  for  the  same  purposes. 
Commissioners      14.   The  commissioners  of  the  several  seaport  towns  and  towns 
towms'to'^have    leaving  a  port  of  entry,  where  there  are  no  commissioners  of  navi- 
iii  certain  oases,  gation,  shall  have  the  same  power  and   authorities,  and  be  subject 
commis^i'onJrs^to  ^^^^  same  duties,  as  are  herein  directed  and  prescribed  for  the 
of  navigation,   commissioners  of  navigation,  in  relation  to  the  quarantine  of  vessels, 
in  the  ports  of  their  respective  towns,  and  all  persons  offending 
against  the   regulations   of  such  commissioners   of  towns,    where 
there  are  ports  of  entry,  shall  be  subject  to  the  same  fines,  penal- 
ties and  forfeitures,  as  though  the   said  regulations  had  been   made 
by  commissioners  of  navigation. 
What  shall  be        15.   All  Donds  of  Stagnant  water,  all  cellars   and  foundations  of 
nuisances  in      houses,  vvhosc  bottoms  Contain  stagnant  and  putrid  water,  all  dead 
the  seaport       and  putrefied  animals  lying  about  the  docks,  streets,  lanes,  alleys, 
towns.  vacant  lots  or  yards,  all  privies  that  have  no  wells  sunk  under  them, 

all  slaughter  houses,  all  docks  whose  bottoms  are  alternately  wet 
and  dry  by  the  ebbing  and  flowing  of  the  tide,  all  accumulation  of 
filth  in  the  streets,  lanes,  alleys,  and  gutters  thereof,  all  accumufa- 
tions  of  vegetable  and  animal  substances  undergoing  putrefactive 
fermentation,  in  any  of  the  seaport  towns  of  this  State,  are  hereby 
declared  common  nuisances,  productive  of  ofl^ensive  vapors  and 
noxious  exhalations,  the  causes  of  disease,  and  ought  to  be  re- 
strained, regulated  and  removed. 
Owners  of  lots      16.   Every  person,  possessed  of  a  lot    or    lots  in  any  seaport 

in  seaport 


12     1797,  c.  486,  s.  2. 

13.  Amendment. 

14.  Amendment. 

15.  1S15,  c.  893,  s.  1. 

16.  1S15,  c   893,  s.  2. 


Chap.  XCVI.]  quarantine  and  health.  497 

town,  which,  from  their  low  or  sunken  situation,  are  liable  to  retain  towns  to  keep 
tide,  or  rain  water,  or  on  which  cellars  or  foundations  for  buildings  at  certain"'^'^ 
may  be  dug,  and  whether  a  tenement  be  erected  over  the  same  or  seasons. 
not,  shall  during  the  months  of  June,  July,    August,    September 
and  October,  preserve  and  keep  the  said  lots,  cellars  and  founda- 
tions dry  and  free  from  stagnant  or  putrid  waters  and  other  filth  ;  Penalty  for  neg- 
and  any  person   offending  herein  shall  forfeit  and  pay  five  dollars  ^^^^• 
for  the  use  of  the  town,  to  be  recovered  in  the  name  of  the  com- 
missioners thereof,  for  every  week  he,  she  or  they  shall  suffer  such 
stagnant  or  putrid  water  or  other  filth  to  remain  therein.     And  if  (Commissioners 

1  ■  T  ^  11,  .  ,  Til  •      niay  remove 

the  said  owner  or  owners  shall,  notwithstandmg  the  above  provis-  the  nuisance  at 
ion,  neglect  to  remove  such  stagnant  or  putrid  water  or  other  filth,  |||^  expense  of 
the  commissioners  of  the  town  may  employ  such  person  or  persons 
as  they  may  think  proper,  and  upon  such  terms  as  to  them  may 
seem  reasonable  and  just,  to  remove  from  the  said  lot  or  lots,  cel- 
lar or  foundation,  the  said  filth  or  stagnant  or  putrid  waters,  which 
said  expense  shall  be  considered  as  a  further  fine  for  not  comply- 
ing with  the  provisions  of  this  section,  and  shall  be  collected  ac- 
cordingly, and  the  said  expense  shall  also  be  a  lien  upon  the  lot  or 
lots,  upon  which  the  same  has  been  expended. 

17.  When  a  contagious  disease  shall  be  raging   in   any  part   of  Officers  of 
this  State,  or  in  any  part  of  the  United  States,  it  shall  be  the  duty  porate'd  townT' 
of  the  officers  of  pohce  of  any  incorporated  town  within  this  State,  to  adopt 
who  may  have  what  they  consider  well  founded  apprehensions,  that  pevendng  the 
their  town  is  in  danger  of  being  visited  by  such  disease,  to  take  introduction  of 
such  precautionary  measures,  and  provide  such  penalties   for   the 
breach  of  them,  as  may  seem  necessary  and  proper,  the  expense 
of  which  they  are  hereby  authorized  to  defray  out  of  any  money  at 
the  time  in  their  town  treasury,  or,  if  that  should  not  be  in  a  situa- 
tion to  sustain  the  expense,  to  borrow  such  sum  as  may  be  neces- 
sary to  defray  such  expense,  and  afterwards  to  raise  the  amount  by 
tax  on  the  inhabitants  of  such  town,  over  and  above  the  ordinary 
taxes  levied  for  the  current  expenses  of  such  town. 

18.  Nothing  contained  in  the  foregoing  section,  shall  be  construed  Proviso  to  the 
to  lessen  or  impair  the  power  and  authority  of  the  commissioners  ^9^egomg  sec- 
of  the  seaport  towns,  or  the  commissioners  of  navigation,  or  other 
officers,  under  the  quarantine  laws  of  the   State,   to  prevent   the 
introduction  of  diseases  by  vessels  arriving  at  or  near  said  seaport 
towns. 

IT.   1824,  c.  1232,  s.  1. 
18.  1824,  c.  1232,  s.  2. 

VOL.  I.  63 


contagious  dis- 
eases. 


498 


QUO    WARRANTO,    ETC.      [ChAP.  XCVII. 


CHAPTER  97. 

aUO    WARRANTO    AND    MANDA- 
MUS. 


AN  ACT  CONCERNING  WRITS  OF  QUO  WARRANTO  AND  MANDAMUS. 


Section 

1 .  In  what  cases  an  information  may  be 

filed,  and  by  whom — Nature  of  the 
proceedings — In  certain  cases,  sev- 
eral rights  may  be  tried  in  one  in- 
formation —  Pleas,  when  to  be 
filed. 

2.  Upon  conviction,  what  judgment  the 

court  may  pronounce — Costs  to  be 
recovered  by  the  party  succeeding. 


In  what  cases, 
an  information 
may  be  filed, 
and  by  whom. 


Section 

3.  A  return  shall  be  made  to  the-  first 

mandamus. 

4.  Court  may  give  time  to  make  return, 

plead,  &c. 
5  Returns  may  be  contested,  and  pro- 
ceedings thereon— If  the  plaintiff" 
have  a  verdict  in  his  favor  on  such 
contested  return,  what  consequences 
shall  follow. 


Nature  of  the 
proceedings. 

In  certain  cases 
several  rights 
may  be  tried  in 
one  informa- 
tion. 

Pleas  when  to 
be  filed. 


Upon  convic- 
tion, what 
judgment  the 
court  may  pro- 
nounce. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  where  any  person  or  persons  shall  usurp,  intrude  into,  or  un- 
lawfully hold  or  execute,  any  office  or  franchise,  it  shall  be  lawful 
for  the  attorney  general  or  solicitors  for  the  State,  in  the  superior 
court  ol"  the  county  within  which  the  office  is  situate  or  the  fran- 
chise is  held  and  exercised,  with  the  leave  of  the  court,  to  exhibit 
an  information  or  informations,  in  the  nature  of  a  quo  ivarranto.,  at 
the  relation  of  any  person  or  persons  desiring  to  prosecute  the 
same,  and  who  shall  be  mentioned  in  said  information  or  informa- 
tions, to  be  the  relator  or  relators,  against  such  person  or  persons, 
so  usurping,  intruding  into,  or  unlawfully  holding  or  executing  said 
offices  or  franchises,  and  the  court  shall  proceed  therein,  in  such 
manner  as  is  usual  in  cases  of  information  in  the  nature  of  a  quo 
warranto  ;  and  if  it  shall  appear  to  the  court  that  the  several  rights 
of  divers  persons,  to  the  said  offices  or  franchises,  may  properly 
be  determined  on  one  information,  it  shall  be  lawful  for  the  said 
courts  to  give  leave  to  exhibit  one  such  information  against  several 
persons,  in  order  to  try  their  respective  rights  ;  and  such  persons 
shall  appear  and  plead,  as  of  the  same  term  in  which  the  informa- 
tion is  filed,  unless  the  court  shall  give  further  time  ;  and  the  per- 
son or  persons,  who  prosecute  such  information  or  informations, 
shall  proceed  thereupon  with  the  most  convenient  speed. 

2.  When  any  person  or  persons,  against  whom  any  information 
or  informations,  in  the  nature  of  a  quo  warranto,  shall  in  any  of  the 
said  cases  be  exhibited,  shall  be  found  guilty  of  an  usurpation,  in- 


1.  9  Anne,  c.  20,  s.  4. 

2.  9  Anne,  c.  20,  s.  5. 


Chap.  XCVIL]    quo  warranto,  etc.  499 

trusion  into,  or  unlawful  holding  or  executing  any  of  the  said  offices 

or  franchises,  it  shall  be  lawful  for  the  said  courts,  as  well  to  give 

judgment  of  ouster,  as  to  fine  such  persons,  and  also  to  give  judg-  Costs  to  be  re- 

ment  that  the  relators  shall  recover  their  costs  ;  and  if  judgment  be  covered  by  the 

given  for  the  defendants,  they  shall  recover  their  costs  against  the  fng/  ^^"^^^^ 

relators. 

3.  When  any  writ  of  mandamus  shall  issue,  such  persons,  as  by  A  return  shall 
law  are  required  to  make  returns,  shall  make  their  returns  to  the  f^r^manda^^ 
first  writ  of  mandamus.  mus. 

4.  It  shall  be  lawful  for  the  court,  to  whom  such  return  is  re- Court  may  give 
quired  to  be  made,  to  allow  the  persons,  to  whom  any  writ  of  man-  reun-n°pk^a(f 
damns  shall  be  directed,  or  against  whom  any  information   in  the  &c. 

nature  of  a  quo  warranto  in  the  cases  aforesaid,  shall  be  prosecut- 
ed, or  to  the  persons  who  shall  prosecute  the  same,  such  conve- 
nient time  to  make  a  return,  plead,  reply,  rejoin  or  demur,  as  to 
the  said  courts  shall  seem  just. 

5.  Where  any  mandamus  shall  issue,  and  a  return  shall  be  made,  Returns  may 
it  shall  be  lawful  for  the  person  or  persons,  suing  such  mandamus.,  an/proceed-' 
to  plead  or  traverse  all  or  any  material  facts  contained  in  the  re-  ings  thereon. 
turn,  to  which  the  persons  making  the  return  shall  reply,  take  issue 

or  demur,  and  such  proceedings  shall  be  had  therein  as  might  have 
been  had,  if  the  person  suing  such  writ  had  brought  his  action  on 
the  case  for  a  false  return  ;  and  if  issue  shall  be  joined  on  such 
proceedings,  the  person  or  persons,  suing  such  writ,  may  try  the 
same  in  such  place,  as  issue  joined  in  such  action  on  the  case 
mieht  have  been  tried  :  and   in  case   a  verdict  be   found   for   the  ^„  ,      ,  .    .^ 

°  .  ....  .  ^       ,  .  If  the  plamtiff 

person   or  persons  sumg  such  writ,  or  judgment  given  tor  huxi  or  have  a  verdict 
them,    they  shall  recover  their  damages  and  costs,  as  they  niidit '" '"*  ^*^^°'"  °" 

',  .  '^•/o       sucli  contcstGci 

have  done  in  such  action  on  the  case,  to  be  levied  as  in  other  return,  what 
cases  ;  and  a  peremptory  writ  of  mandamus  shall  be  granted  with-  consequences 
out  delay,  as  if  such  return  had  been  adjudged  insufficient  ;  and  in 
case  judgment  shall  be  given  for  the  persons  making  such  returns, 
they  shall  recover  their  costs  :  Provided,  if  any  damages  shall  be 
recovered,  by  virtue  of  this  act,  against  any  person  or  persons 
making  such  return  to  such  writ  as  aforesaid,  he  or  they  shall  not 
be  liable  to  be  sued  in  any  other  action  or  suit  for  making  such 
return. 

3.  9  Anne,  c.  20,  s.  1. 

4.  9  Anne,  c.  20,  s-  6. 

5.  9  Anne,  c.  '20,  s.  2. 


500 


R 


t^di 


cc/t.Tirci*-'^ 


REGISTERS.  [ChAP.  XCVIII. 


CHAPTER  98. 


REGISTERS. 


^-^^    Z^:^.  ^ /2.^p^  ^^u.^::: 


AN  ACT  CONCERNING  REGISTERS. 


Section 


1-  County  courts  to  appoint  registers, 
who  are  to  take  oaths,  and  hold 
their  offices  for  four  years. 

2.  County  courts  to  fill  vacancies,  and 

the  persons  appointed  to  hold  office 
for  four  years. 

3.  Three  justices  to  fill  vacancies  oc- 

curring between  the  terms  of  the 
courts,  and  the  persons  appointed  to 
remain  in  office  until  an  appoint- 
ment by  court — The  clerk  shall  re- 
cord such  appointment. 

4.  Registers  to  give  bond. 

5.  Clerks   to   deliver  deeds,   and  pay 

over  register's  fees  after  ten  days 
from  the  rise  of  the  court. 


Section 

6.  Registers,  to  call  upon  the  clerks  for 

the  deeds,  &c.  within  twenty  days 
from  the  rise  of  the  court. 

7.  Penalty  on  registers  for  delay  in  re- 

gistering deeds,  &c. 

8.  Registers,  to  leave  deeds,  &c.  which 

they  have  registered,  at  the  county 
court. 

9.  Registers    convicted    of    breach   of 

duty,  may  be  removed  from  of- 
fice. 

County  courts  may  have  register's 
books  transcribed. 

Registers,  to  be  exempt  from  serving 
on  juries. 


10. 


11. 


County  courts 
to  appoint  reg- 
isters, who  are 
to  take  oaths, 
and  hold  their 
offices  for  four 
years. 


County  courts 
to  fill  vacan- 
cies, and  the 
persons  ap- 
pointed to  hold 
office  for  four 
years. 


Three  justices 
to  fill  vacan- 
cies occurring 
between  the 
terms  of  the 


1 .  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  the  several  courts  of  pleas  and  quarter  sessions,  a  majority  of 
the  acting  justices  being  present,  shall,  by  a  vote  of  a  majority  of 
the  justices  present,  nominate  and  appoint  a  register  for  their  re- 
spective counties,  who  shall  take  the  oaths  appointed  for  the  quali- 
fication of  public  officers,  and  an  oath  of  office,  and  shall  hold  his 
office  for  the  term  of  four  years. 

2.  When  any  vacancy  shall  arise  in  the  office  of  register  of  any 
county,  by  death,  resignation  or  otherwise,  it  shall  be  the  duty  of 
the  county  court,  wherein  such  vacancy  may  happen,  a  majority  of 
the  justices  being  present,  to  elect  some  suitable  person  of  such 
county  to  be  register  for  the  term  of  four  years,  next  succeeding 
his  appointment,  who  shall  be  qualified  as  above  directed,  and, 
after  the  expirmion  of  theltejm  of  fouf  years,  for  which  any  per- 
son may  be  appointed  register,  under  the  provisions  of  this  section, 
the  several  county  courts  shall  proceed  to  elect  registers  in  the 
manner  prescribed  in  the  first  section  of  this  act. 

3.  When  any  vacancy  shall  exist  in  the  office  of  register  of  any 
county,  by  death  or  otherwise,  in  the  interval  between  the  county 
courts,  it  shall  be  lawful  for  any  three  justices  of  the  peace  of  such 

1.  1777,  c.  lis,  s.  13.— 1816,  c.  901,  s.  1.— 1822,  c.  1147,  s.  1. 

2.  1835,  c  24. 

3.  1335,  c.  18,  s.  1  and  2. 


Chap.  XCVIIL]  registers.  501 

county,  to  meet  at  the  office   of  the  clerk  of  the  court  of  pleas  courts,  and  the 
and  quarter  sessions  of  such   county,  and  nominate  and  appoint  a  pointed  t^o're- 
register,  who  shall  give  bond  and  take  the   oaths,  required  by  law  main  in  office 
from  registers  regularly  appointed,  and  shall  take  into  his  custody  po{J,|^"^jP{, 
the  book  and  records,  be  bound  to  perform  all  the  duties,  and  in- court, 
vested  with  all  the   powers,  authorities  and  emoluments  pertaining 
to  said  office,  and  shall  hold  his   office   until  an  appointment  shall 
be  made  by  the  court  of  pleas  and  quarter  sessions,  as  prescribed 
in  the  first  section  of  this  acj  ;  and' it  shall  be  the  duty  of  the  clerk  The  clerk  shall 
of  the  court  of  pleas  and  quarter  sessions  to   record  the  appoint- ^^'j°^^^g^j^  ^P' 
ment,  so  made  in  vacation,  on  the  records  of  said  court,  for  which 
he  shall  be  entitled  to  the  same  compensation,  that  he  receives  for 
recording  an  appointment  made  in  open  court. 

4.  Every  register,  before  he  enters  upon  the  duties  of  his  office.  Registers  to 
shall  give  bond  with  sufficient  security,  in  the  penalty  of  ten  thou-  S^'^^  bond, 
sand  dollars,  payable  to  the   State  of  North  Carohna,  and  condi- 
tioned for  the  safe  keeping  of  the  books  and  records,  and  for  the 

true  and  faithful  discharge  of  the  duties  of  his  office,  which  bond 
shall  be  renewed  every  year,  and,  upon  a  breach  thereof,  shall  be 
■tued  upon  as  in  other  cases  of  official  bonds. 

5.  Each  of  the  clerks  of  the  courts  of  pleas  and  quarter  sessions,  Clerks  to  de- 
upon  application  of  the  register  for  his  county,   at  any  time  after  ^^J^^g^'^^.g'^^"*^ 
ten  days  from  the  rise  of  each  court,  shall  dehver  to  the  said  register  ister's  fees'' 
all  deeds   and    other  instruments  of  writing,    admitted  to  probate,  ^^f^^^'  \^  ^^^^ 
and  then  remaining  in  the  office  of  the  said  clerk  for  registration,  of  the  court, 
and  shall  at  the  same  time  pay  over  to  the  register  the  several  fees 

for  registering  the  same,  which  fees  it  shall  be  the  duty  of  the 
clerk  to  receive  for  the  register  ;  and  in  case  any  one  of  the  said 
clerks  shall  fail  to  deliver  over  such  deeds  and  instruments  of 
writing,  upon  the  application  of  the  register  aforesaid,  and  to  pay 
to  the  said  register  his  fees  as  aforesaid,  he  shall  for  every  such 
failure,  forfeit  and  pay  to  the  register  the  sum  of  one  hundred  dol- 
lars, for  which  sum  judgment  shall  be  entered  by  the  succeeding 
court,  upon  motion  on  behalf  of  the  register. 

6.  It  shall  be  the  duty  of  the  registers  within  the  several  coun-  Registers  to 
ties,  within  twenty  days  after  the  rise  of  each  and  every  county  cj^erj^J'for^^^ 
court  as  aforesaid,  to  apply  at  the  clerk's  office  of  their  respective  deeds,  &c. 
counties,  for  all  deeds  and   other   instruments  of  writing  as  afore- Y^'^^^f  "^^"^ri!^ 

•jj-i  1  r  •  •  1-  ^11       "^^y®  uom  trie 

said,  admitted  to  probate  lor  registration,  and  in  case  of  neglect  by  rise  of  court, 
either  clerk  or  register  in  performing  the  duties  aforesaid,  the  per- 
son, so  neglecting,  shall  forfeit  and  pay  the  sum  of  ten  dollars  for 
every  such  offence,  to  be  recovered  by  warrant  before  a  justice  of 
the  peace,  one  half  to  the  use  of  the  poor  of  the  county  in  which 
such  recovery  may  be  had,  the  other  half  to  the  use  of  any  person 
suing  for  the  same,  and  be  further  hable  for  all  damages  the  party 
injured  by  such  neglect  may  sustain. 

7.  Every  register,  who  shall  neglect   or   delay  to   register  any  Penalty  on  reg- 
deed  or  conveyance,  within   two  months   after  the  same  shall  be  in  registering'^ 


4.  1777,  ©.  118,  s.  13.— 1833,  c.  17.— 1819,  c.  990.-1793,  c.  384,  s.  1,  2  and  3. 

5.  1814,  c.  SSI,  s.  2.-1807,  c.  725,  s.  1. 

6.  1807,  c.  725,  s.  2. 

7.  1755,  c.  58,  s.  5.-1741,  c.  34,  s.  4. 


deeds,  &c. 


502  REGISTERS.  [ChAP.  XCVIII. 

delivered  to  him,  such  register,  for  each  and  every  two  months  he 
shall  so  neglect  or  delay,  shall  forfeit  and  pay  the  sum  of  forty  dol- 
lars, one  half  to  the  use  of  the  poor  of  the  county,  and  the  other 
half  to  him  or  them,  who  will  sue  for  the  same,  to  be  recovered 
by  action  of  debt  with  costs. 
Registers  to  8.   It  shall  be  the  duty  of  each  and  every  public  register,  to  leave 

&c.  which  they  at  each  and  every  county  court  of  pleas  and  quarter  sessions,  with- 
have  register-    jn  their  respective  counties,  all  grants  or  State  patents,  which  have 
ty  court.'^'^       been  delivered  to  them  for  registration,  one  week  previous  to  the 
setting  of  such  court,  and  on  which  their  fees  have  been  paid,  ready 
to  be  dehvered  to  the  owner  thereof. 
Registers  con-       9.   If  the  register  of  any  county  shall  be  gyilty  of  any  breach  of 
breach  of  duty  ^^^  duties  enjoined  him  by  this  act,  either  by  his  own  confession  or 
may  be  re-      '  verdict  of  a  jury,  it  shall,  on  a  second  conviction,  be  adjudged  and 
^ce^'^     "^      deemed  a  misbehavior  in  office,   for  which   such  register  shall  be 
removed  from  office  :   Provided  nevertheless,  that  in  case  such  re- 
gister shall  be  dissatisfied   with  the  determination  of  the  county 
court,  he  may  appeal  to  the  superior  court  of  the  same  county,  in 
which  there  shall  be  a  trial  by  jury,  and  if   the  suspension  of  the 
county  court  shall  be  confirmed,  the   said  register  shall  ever  after- 
wards be   rendered    incapable  of  acting  in  the  same  office  in  any 
county  in  this  State. 
County  courts        IQ.   The  courts  of  plcas  and  quarter  sessions  shall  have  power  to 
ister's  books^'  employ  suitable  persons  to  transcribe  and  index  such  of  the  register's 
transcribed.      books,  in  their  respective  counties,  as   from  decay  or  other  cause 
may   require   to  be  transcribed  or   indexed,   and   the  said   books, 
when  so   transcribed  and  approved  of  by  the  said  courts  respec- 
tively, shall  be  deemed  and   taken  as  public  records  ;  and  copies 
from  said  books,  of  deeds  and  other  conveyances,  reports  of  com- 
missioners appointed  to  make  partition  of  real  estate,  and  all  other 
papers  required  by  law  to  be  registered,  certified  by  the  registers 
for  the  time  being,  shall  be  received  in  evidence  in  the  same  way 
and  under  the  same   rules,  regulations   and  restrictions,  as   copies 
from  the  register's   books  have   heretofore   been  received  in  evi- 
dence. 
Registers  to  be      11.   Registers  shall  be  exempted  from  serving  on  juries. 

exempt  from 


serving  on 
juries. 


S.   1807,  c.  725,    s.  4. 
9.    17*4,  c.  2-23,  s.  9. 

10.  1814,  c    881,  s.  1. 

11.  Amendment. 


Chap.  XCIX.]      religious  societies. 


503 


CHAPTER  99. 


REIilOIOUS    SOCIETIES 


AN  ACT  CONCERNING  RELIGIOUS  SOCIETIES  AND  CONGREGATIONS. 


All  lands,  &c.  heretofore  appropria- 
ted to  any  religious  society,  to  be- 
long to  them. 

Houses  of  worsiiip,  on  vacant  land, 
secured  to  the  religious  society 
erecting  them. 

Religious  societies  may  choose  trus- 
tees—  Their  power. 

Trustees  may  sue  and  be  sued. 

Trustees  to  account  to  their  respec- 
tive societies. 

Donations,  &c.  to  religious  societies 
confirmed. 

Penalty  for  obstructing  ways  to  places 
of  public  worship. 


10. 
11. 

12. 
13. 


/^<U^- 


Section  Section 

8.  No  stud  horse  or  jackass  to  be 
brought  within  three  hundred  yards 
of  a  place  of  a  religious  congrega- 
tion. 

9.  Spirituous  liquors  not  to  be  brought 
for  sale  within  half  a  mile  of  per- 
sons assembled  for  religious  wor- 
ship. 

Proviso  to  the  two  last  sections. 
Penally  for  intoxication  or  disorderly 

behavior  during  divine  service. 
How  penalties  shall  be  recovered. 
When  appeal  is  taken,  duty  of  clerk 

and  prosecuting  attorney. 

1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted   by  the  authority  of  the  same, 

That  all  glebes,  lands  and  tenements,  heretofore  purchased,  given  All  lands,  &c. 
or  devised  for  the  support  of  any  particular  ministry,  or  mode  of^""*^*?'°''^^P' 

11  •/    1  J  ^        ^  propri&tccl  to 

worship,  and  all  churches,  chapels  and   other  houses,  built  for  the  any  religious 
purpose  of  public  worship,  shall  be  and  remain  forever  to  the  use  j°"*^^y'^j°  ^®' 
and  occupancy  of  that  religious  society,  church,  sect  or  denomina- 
tion, to  or  for  which,  the   said  glebes,  lands  or  tenements  were  so 
purchased,   given  or  devised,    or  for  which   the   said   churches, 
chapels,  or  other  houses  of  public  worship  were  built. 

2.  All  houses  and  edifices,  erected  for  public  religious  worship.  Houses  of  wor- 
where  the  same  may  have  been  on  vacant  or  unappropriated  lands,  jand  securedto 
together  with  two  acres  adjoining  the  same,  shall  hereafter  be  held  the  religious 
and  kept  sacred  for   divine  worship,   to  and   for  the  use   of  the  in^them^*^*^^' 
society,  by  which  the  same  was  originally  established. 

3.  It  may  be  lawful  for  any  religious  society  or  congregation  in  Religious  so- 
this   State,  if  they  should  deem  it  necessary,  at  any  time,  to  elect  ^1^^^'^^™^^^^ 
any  number  of  persons  they  may  think  proper,  as  trustees  for  their 
respective  societies  or  congregations,  from  whose  body  they  may 

have  been  selected,  and  all  such   persons,  so  appointed,  or  their 
successors  in  office,  are  hereby  vested  with  full   and  ample  power  _,  . 
to  purchase  and  hold,  in  trust  for  such  society  or  congregation  to 


^/c 


1.  1776,  C.  107. 

2.  1778,  c.  i:«,  s,  6. 

3.  1700,  C.  407,  S.  1. 


504 


RELIGIOUS    SOCIETIES.        [ChAP.  XCIX. 


Trustees  may 
sue  and  be 
sued. 


Trustees  to  ac- 
count to  their 
respective  so- 
cieties. 


Donations,  &c. 
to  religious  so- 
cieties con- 
firmed. 


Penalty  for  ob- 
structing ways 
to  places  of 
public  worship. 


which  they  may  belong,  any  lands,  houses  or  tenements,  and  to 
receive  gifts  and  donations  of  any  nature  or  kind  whatever,  for 
the  use  and  benefit  of  such  society  or  congregation  :  Provided  nev- 
ertheless, that  by  virtue  of  this  act  no  single  congregation  or  society 
shall  hold  more  lands,  than  in  value  shall  amount  to  the  sum  of 
four  hundred  dollars  yearly,  and  in  quantity  to  two  thousand  acres, 
all  which  shall  be  subject  to  taxes  like  other  lands. 

4.  It  may  be  lawful  for  trustees,  acting  under  the  authority  of 
this  act,  to  sue  for  the  recovery  of  any  gift  or  donation,  that  has 
been  heretofore  or  may  hereafter  be  given,  whether  of  real  or  per- 
sonal property,  and  to  sue  and  be  sued  in  all  cases  of  tort  or  con- 
tract, of  or  concerning  the  property,  real  or  personal,  of  which 
they  are  trustees  ;  also  in  all  matters  of  contract,  which  may  be 
cognizable  before  a  justice  of  the  peace,  for  the  purposes  afore- 
said, and  if  any  recovery  shall  be  made  by  the  said  congregation  or 
society,  or  their  trustees,  such  recovery  shall  enure  to  the  sole  use 
of  the  respective  societies  or  congregations,  to  which  they  may 
belong. 

5.  It  shall  be  lawful  for  such  rehgious  societies  or  congregations, 
at  any  time  they  may  think  proper,  to  cause  the  said  trustees  to 
account  for  all  such  property,  of  any  nature  or  kind  whatsoever, 
that  may  have  been  committed  to  their  trust ;  and  in  case  of  refusal 
or  neglect,  when  required  so  to  do,  it  shall  be  lawful  for  the  society 
or  congregation  to  elect  any  number  of  persons  as  agents,  in  behalf 
of  said  society  or  congregation,  to  bring  suit  for  the  recovery 
thereof. 

6.  All  lands,  houses,  tenements,  gifts  or  donations,  of  any  kind 
or  nature  whatsoever,  that  have  been  heretofore  or  may  be  hereaf- 
ter given,  granted  or  otherwise  confirmed  or  conveyed  to  any  reli- 
gious society  or  congregation,  or  to  any  of  the  members  thereof,  for 
the  use  of  the  said  society  or  congregation,  shall  be  deemed  and 
held  valid  in  law  to  convey  to  the  said  society  or  congregation,  or 
respective  societies  or  congregations,  the  absolute  estate  of  all  such 
property,  as  may  have  been  intended  to  be  made  or  expressed  in 
such  deed  of  sale,  will  or  gift :  Provided  nevertheless,  that  nothing 
contained  in  this  act,  shall  tend  to  affect  the  claim  or  claims  of  any 
other  person  or  persons,  except  the  donor,  his  heirs  or  those 
claiming  under  him  or  them,  from  whom  the  respective  societies 
or  congregations  may  have  derived  their  titles. 

7.  Any  person,  who  shall,  under  pretence  of  owning  the  land  or 
lands  adjoining  or  surrounding  any  church,  meeting  house  or  other 
house  or  houses  of  religious  pubHc  worship,  stop  or  obstruct,  or  • 
cause  the  same  to  be  done,  the  usual  way  or  ways  leading  to  or 
from  any  of  the  aforesaid  places  of  public  worship,  or  springs 
or  wells  therewith  used,  shall  forfeit  and  pay  the  sum  of  ten 
dollars  for  every  such  offence  :  Provided  alioays,  that  nothing 
herein  shall  subject  any  person  to  the  penalty  aforesaid,  who  shall 
surround  any  spring  or  well  with  a  fence,  if  such  fence  shall  not 


4.  1706,  c.  457,  s.  2. 

r>.  170G,  c.  457,  s.  3. 

6.  1796,  c.  457,  s.  4. 

7.  1765,  C.  241. 


Chap.  XCIX.]      religious  societies.  o05 

absolutely  render  a  passage  to  such  spring  or  well  impracticable  : 
Jlnd  provided  also,  that  surrounding  any  piece  of  land,  through 
which  any  of  the  aforesaid  ways  shall  lead,  shall  not  subject  any 
person  to  the  said  penalty,  if  a  passage  shall  be  left  to  the  church, 
meeting  house  or  place  of  religious  public  worship,  of  the  same 
width  at  least  that  such  w^ay  was  usually  of. 

8.  No  person  shall  bring  to  any  place,  where  a  congregation  is  No  stud  horse 
assembled  for  divine  worship,  or  within  three  hundred  yards  there- P^'J^^K^®®-!?.^® 

r  11  -111  1  r     •        J    n  brought  within 

ot,  any  stud  horse  or  jackass,  under  the  penalty  or  six  dollars,  to  three  hundred 
be  recovered  by  warrant,  in  the  name  of  the   State,   before   any  ^5'''^^ '^^^P^^'^^ 

ri  -I'l  T        rr-  •'01  a  religious 

justice  of  the  peace  of  the  county  in  which  such  offence  may  be  congregation, 
committed,  to  be  applied  to  the  use  of  the  poor  of  said  county  : 
Provided,  nothing  herein  contained  shall  be  so  construed  as  to 
prevent  any  person  from  removing  his  stud  horse  or  stud  horses, 
from  one  stand  to  another,  so  that  he  does  not  stop  his  stud  horse 
within  three  hundred  yards  of  the  aforesaid  place  of  worship. 

9.  It  shall  not  be  lawful  for   any  person,  who   is   settled  with-  ijuotrnot  to 
in   a  mile   of  any    church    or    meeting    house    or    other    place,  be  brought  for 
where    persons    are    assembled    for    divine     worship,    the    keep-j^gj^^^lj^j^^  ^f 
ers   of  licensed   taverns   and    stores    excepted,   to  sell  spirituous  persons  assem- 
liquors  or  other  articles  to   persons  assembled  for   divine  service  ;^Q^g"Jj^gyp_ 
and  if  any  person  shall  bring  to  any  church  or  meeting  house  yard, 

on  days  fixed  upon  for  divine  worship,  or  to  any  place,  where  per- 
sons are  assembled  for  divine  worship,  or  within  half  a  mile  of 
either  of  said  places,  and  shall  there  attempt  to  sell  or  give  away, 
on  such  days  as  aforesaid,  any  spirituous  liquors  or  other  articles, 
or  shall  erect  any  booth,  harbor,  or  make  a  stand  within  half  a  mile 
thereof,  for  the  purpose  of  selling  or  giving  avt'ay  spirituous  liquors 
and  other  articles,  on  such  days  as  aforesaid,  each  and  every  per- 
son so  offending  shall  forfeit  and  pay  the  sum  of  ten  dollars. 

10.  The  eighth  and  ninth  sections  of  this  act  are  not  intended  ^^°{?^°  l^J'^ 
to  operate  and  take  effect  before  the  hour  of  ten  in  the  forenoon,  sections. 
and  after  the  hour  of  four  in  the  afternoon,  where  a  church  or  meet- 
ing house  is  situated  within  the  limits   of  any  town,   nor   shall  any 
recovery  be  had  in  pursuance  of  this  act,  unless  information  shall 

be  made  of  the  offence  within  ten  days  after  it  is  committed. 

11.  If  any   person   shall  be   intoxicated  at  a  church,  meetine  f  ®"    J  ^°^' ^'^" 

,  •'      '  ,  .  ,   ^        ,.    .  ,..',.     °  toxication  or 

house  or  any  other  place  appointed  lor  divine  worship,  in  the  time  disorderly  be- 
people  shall  be  there  assembled  for  the  purpose  of  divine  worship,  ^h^'ne  service 
or  shall  at  such  time  and   place   quarrel,  fight  or   be  guilty  of  any 
other  disorderly  behavior,  he  shall  forfeit  and  pay  the  sum  of  five 
dollars. 

12.  The  penalties,   incurred   under   this   act,  shall  and  may  be  ^J°)T  P®'^'^^^^^* 

,  ,    V  •      •  ■  1  •        1  I  shall  be  re- 

recovered  beiore  any  justice,    within  whose  county  the  same  may  covered. 

happen,  by  warrant  in  the   name  of  the   State,  to  the  use   of  the 

poor  of  the  county,  or  by  indictment  ;  and  upon  information  of  any 

such  offences  being  made  to  a  justice  of  the  peace  in  his   county, 

8.  1809,  c.  779,  s.  1. 

9.  1800,  c.  564.  s.  1.— 1808,  c.  761,  s.  1.— 1809,  c  779,  s.  2. 

10.  1800,  c.  564,  s.  2. 

11.  1807,  c.  729,  s.  2. 

12.  1800,  c.  564,  s.  1.— 1807,  c.  729,  s-  2.— 1816,  c.  922. 

VOL.   I.  64 


506 


REPEAL   OF    STATUTES. 


[Chap.  C. 


he  shall  issue  his  warrant  against  such  offender,  and  have  him  or 
her  apprehended  and  brought  to  justice.  Provided  the  applicatiori 
be  made  for  said  warrant,  within  ten  days  after  the  offence  was 
committed. 

13.   The  clerk  shall  enter  on  the  State  docket  all  appeals  from 

clerk'and  pros- judgments,   rendered  for  penalties  given  under    this  act  ;   and  it 

ecuting  attor-    shall  be  the  duty  of  the  prosecuting  officer  to  prosecute  the  same, 

who  shall  be  entitled  to   the   same  fees,  as  are  allowed  for  State 

prosecutions. 

13.   1807,  c.  779,  s.  4. 


When  appeal  is 
taken,  duty  of 


ney 


Note. — References  to  Adjudged  Cases. 
Sect.  6.  Trustees  vs.  Dickinson,  1  Dev.  190. 


CHAPTER    100. 


REPEAL.    OF    STATUTES. 


AN  ACT   CONCERNING   THE  REPEAL  OF  STATUTES. 

Be  it  enacted  by  the  General  Assembly  of  the  State  of  Jforth 

Carolina,  and  it  is  hereby  enacted    by  the   authority    of  the  same, 

The  repeal  of  a  That  the  repeal  of  a  statute  shall  not  effect  any  suit  or  suits,  brought 

statute  not  to    before  the  repeal,  for  any  forfeitures  incurred,  or  for  the  recovery 

pending.  of  any  rights  accruing,  under  said  statute. 

1830,  C.  44. 


CHAPTER   101. 


REPL.ETIN. 


AN  ACT  CONCERNING  THE  ACTION  OF  REPLEVIN. 


Section 

1.  Action  of  replevin  for  slaves  main- 

tainable, in  what  cases. 

2.  Duty  of  clerk  before  issuing  writ. 

3.  Description  and  value  of  slaves  to  be 

stated. 
4    Duty    of   sheriff   in    executing    the 
writ. 


/  ^  i  r  ; 


G. 


I   i 


i 


Section 

5.  What  judgment  shall  be  rendered  if 

plaintiff  recovers. 

6.  What  judgment  the  plaintiff  shall 

have  in  case  of  his  recovery,  when 
the  slave  shall  have  been  delivered 
to  him  agreeably  to  the  fourth  sec- 


tion. 


P. 


Chap.  CL]  replevin.  507 

1.  Bf.  it  enacted  by  the  General  Assembly  of  the  State  of  JsTorth 
Carolina,  and  it   is  hereby   enacted  by  the  authority  of  the  same, 

That  writs  of  replevin  for  slaves  shall  be  held  and  deemed   to  be  Action  of  re- 
sustainable,  against  persons  in  possession  of  such  slaves,  in  all  cases  plevinfor 
where  actions  of  detinue  or  trover  are  now  proper  :  Provided,  that  tainable^in'^ 
the  plaintiff,  his  or  her  agent  or  attorney,  in  such  action  of  replev-  what  cases, 
in,   shall  make  oath  before  the  clerk  issuing  such  writ,  that  he  or 
she  has  been  in  the  lawful  possession  of  such  slave,  within  two 
years  next  preceding  the  issuing  of  said  writ,  and  that  he  or  she 
has  been  deprived  of  such  possession,  without  his  or  her  permis- 
sion or  consent. 

2.  Whenever  any  person  shall  apply  to  the  clerk  of  any  court  in  Duty  of  clerk 
this  State  to  obtain  a  writ  of  replevin  for  any  slave,  it  shall  be  the  writ^°  issuing 
duty  of  such  clerk,  before  he  issues  the  same,  to  take  an  affidavit 

from  the  plaintiff  in  such  writ,  or  from  his  or  her  agent  or  attorney, 
of  the  value  of  such  slave  ;  and  also  to  take  a  bond,  with  approved 
security,  in  double  the  alleged  value  of  such  slave,  payable  to  the  de- 
fendant, and  conditioned  to  perform  the  final  judgment  on  such  writ. 

3.  In  issuing  writs  of  replevin,  the  clerk  shall,  as  nearly  as  may  Description  and 
be  convenient,  describe  every  slave  therein  demanded,  and  shall  ^obes°ated.^^^ 
annex  to  such  description  a  value,  which  shall  be  equal  to  double 

the  sworn  value  of  such  slave. 

4.  The  sheriff,  to  whose  hands  any  writ  of  replevin  for  any  slave  Duty  of  sheriff 
or  slaves  shall  hereafter  come,  shall  forthwith  take  into  his  custody  i'l  executing 
all  such  slaves,  and  deliver  them  to  the  plaintiff  in  such  writ,  or  his 

or  her  agent  or  attorney  :  Provided  always,  that  if  the  defendant  in 
such  writ  shall  execute  and  deliver  to  the  sheriff  a  bond,  with  ap- 
proved security,  in  double  the  amount  of  the  sworn  value  of  the 
slave  or  slaves,  described  in  the  said  writ,  payable  to  the  plaintiffs 
therein,  with  a  condition  to  perform  the  final  judgment  which  shall 
be  rendered  thereon,  it  shall  not  be  lawful  for  said  sheriff  to  take 
such  slaves  from  his  or  her  possession  ;  but  he  shall  return  the 
bond  so  given,  with  the  writ,  to  the  court  from  which  it  issued. 

5.  If,  upon  the  trial  of  such  action,  the  plaintiff  or  plaintiffs  shall  What  judg- 
recover,  final  judgment  shall  be  rendered  against  the  defendant  and  rendered^ if  ^ 
his  security,  in  case  he  shall  have  given  a  bond  as  required  by  the  plaintiff  re- 
fourth  section  of  this  act,  for  such  value  as  shall  be  assessed  by  the 

jury  upon  such  slave  or  slaves,  with  a  condition  to  be  discharged 
by  the  surrender  of  such  slave  or  slaves  demanded  by  the  writ,  and 
the  judgment  of  such  damages,  as  may  be  adjudged  by  the  court, 
for  the  taking  and  detention  of  such  slaves,  which  damages  for  the 
taking  and  detention  aforesaid,  the  court  shall  assess  double  the 
amount  assessed  by  the  jury. 

6.  In  case  the  slave,  demanded  in  any  writ  of  replevin,  shall  Whatjudgment 
have  been  taken  by  the  sheriff  and  delivered  to  the  plaintiff  in  such  ^j^^j^^^^'^/^i^^ 
writ,  agreeably  to  the  fourth  section  of  this  act,  then  if  the  plaintiff  case  of  his  re- 

1.  1823,  c.  23,  s.  1. 

2.  1828,  c.  28,  s.  2. 

3.  1828,  c.  28,  s.  3. 

4.  1828,  c.  28,  s.  4. 

5.  1828,  c.  28,  s.  5. 
C,  1828,  c  23,  s.  6. 


508 


REVENUE. 


[Chap.  CII. 


covery  when 
the  slave  shall 
have  been  de- 
livered to  him 
agreeably  to 
the  fourth  sec- 
tion. 


recovers  hi  such  action,  he  shall  recover  judgment  for  his  costs, 
and  double  the  real  damage  assessed  by  the  jury  for  the  taking  and 
detention  of  such  slave  or  slaves  ;  but  if  the  plaintiff  in  such  action 
shall  fail  to  recover,  and  a  verdict  be  rendered  for  the  defendant, 
it  shall  be  the  duty  of  the  court,  rendering  judgment  thereon,  forth- 
whh  to  direct  an  issue  to  be  tried,  in  v^'hich  the  damages,  the  de- 
fendant has  sustained  from  being  deprived  of  his  property,  shall  be 
ascertained,  and  judgment  shall  be  rendered  against  the  plaintiff  and 
his  securities  for  the  amount  of  the  bond  given  by  them,  agreeably 
to  the  second  section  of  this  act,  with  a  condition  to  be  discharged 
upon  payment  of  the  amount  of  damages  thus  assessed,  and  all 
costs,  for  which  the  defendant  is  entitled  to  judgment. 


CHAPTEK  102. 

R  E  T  E  N  U  E  • 


%ii'f- 


cL 


V 


AN  ACT  TO  PROVIDE  FOR  THE  COLLECTION  AND  MANAGEMENT  OF 
A  REVENUE  FOR  THIS  STATE. 


Section 

1.  Tax  on  real  estate. 

2.  What  real  estate  shall  be  subject  to 

taxation. 

3.  Entries  of  land  subject  to  taxation. 

4.  Tax   on  real   estate   shall  be  a  lien 

thereon. 

5.  Tax  on  turnpike  roads  and  gates. 

6.  Poll  tax — ^Proviso  as  to  who  may  be 

exempted  from  poll  tax. 

7.  Tax  on  stud  horses  and  jackasses. 

8.  Stud  horses  and  jackasses  to  be  list- 

ed. 

9.  Tax  on  billiard  tables — How  to  be 

given  in  and  license   obtained  for 
keeping  them. 
^   10.  Tax  on  pedlers    by  land — Tax    on 
pedlers  by  water — Persons   selling 
books  only,  not  to  be  taxed. 

11.  Tax    on   pedlers   by  water   on   the 

south  side  of  Albemarle  sound,  ex- 
cept on  Roanoke  and  Cashie. 

12.  Tax  to  be  collected,  though  the  ped- 

ler  may  rent  a  temporary  store. 

13.  The  comptroller  to  issue  to  the  sher- 

iffs, blank  licenses  for  pedlers — No 
license  to  be  issued  to  a  pedler  but 
on  a  certificate  from  the  county 
court. 


Section 
14.  Tax  on  retail  merchants  and  jewel- 
lers— On    wholesale  and  commis- 
sion merchants. 

Tax  on  brokers. 

Tax  on  slaves  brought  from  another 
state  to  this  State  for  sale. 

Tax  on  stage  players,  sleight  of  hand 
performers,  exhibiters  of  curiosi- 
ties, &c.—  Models  of  useful  inven- 
tions excepted. 

Pedlers,  stage  players,  &c.  to  exhibit 
their  licenses  to  any  justice  or  con- 
stable when  demanded — Penalties 
for  refusal. 

Duty  of  constables  to  demand  a  view 
of  such  licenses. 

Tax  on  retEiilers  of  spirituous  liquor. 

Tax  on  tavern  keepers. 

Time  when  the  list  of  taxables  shall 
be  taken. 
23.  County  courts  to  appoint  justices  to 
take  lists — Justices  to  be  notified  of 
their  appointment — To  appoint  pla- 
ces of  taking  the  lists — Three  jus- 
tices may  appoint  one  to  take  lists 
in  case  of  vacancy. 

How  tax  lists  shall  be  given  in. 

Tax  lists  to  refer  to  the  first  day  of 


15. 
16. 

17. 


18. 


19. 

20. 
21. 
22. 


24. 
25. 


nU.y.   clyt-y^-y(,  -  ^^'    —    /s<.^  ^ ;/  ^s--^^- 


Chap.  CIL] 


REVENUE. 


509 


Section 

April  preceding — A  person  coining 
of  age  after  that  day  may  list  him- 
self and  pay  immediately. 

26.  By  whom  the  lists  of  absentees,  tes- 

tators, minors,  &c.  shall  be  given 
in. 

27.  If  owner  fails  to  give  in  his  lands,  the 

justice  may  appoint  a  freeholder 
to  value  it. 

28.  In  case  of  failure  by  the  owner  and 

justice,  the  sheriff  to  have  the  land 
valued  by  a  freeholder — Duty  of 
such  freeholder. 

29.  Penalty  on   freeholders   refusing  to 

act. 

30.  Valuation  of  lands  to  be  in  dollars 

and  cents— How  town  property  to 
be  given  in  and  assessed. 

31 .  A  tract  of  land  lying  partly  in  two 

counties,  where  to  be  given  in. 

32.  County  court  to  associate  with  the 

justices  appointed  to  take  the  tax 
lists,  two  freeholders  to  form  a 
board  of  valuation — Duty  of  the 
board  in  assessing  the  value  of 
lands — Their  compensation. 

33.  Persons  failing  to  give  in  their  lists, 

to  pay  a  double  tax — Lands  of  a 
minor,  &c.  not  to  be  sold  for  taxes. 

34.  Justices  appointed  to  take  the  lists, 

to  return  a  copy  of  such  lists  in  al- 
phabetical order  to  the  next  county 
court— Clerks  to  return  abstracts  of 
the  lists  to  the  comptroller— Penal- 
ty on  the  clerks  for  failing  to  do  so  ; 
and  duty  of  the  comptroller  and  at- 
torney general  in  regard  to  such 
failure. 

35.  Form  of  the  lists  to  be  returned  by 

the  justices. 

36.  Each  justice  to  return  his  own  lists. 

37.  Penalty  on  justices  appointed  to  take 

lists,  for  failure  of  duty. 

38.  County  courts  may  grant  a  certificate 

to  be  received  by  the  comptroller, 
when  the  tax  is  overcharged. 

39.  Clerks  to  record  the  tax  lists,  and  set 

up  copies  of  them  in  the  court 
house. 

40.  Penalty  on  a  justice  for  receiving  a 

list  without  an  oath. 

41.  The  clerks  of  the  county  courts  to 

deliver  to  the  sheriffs  copies  of  the 
lists  returned — Sheriff  to  proceed  to 
collect  after  first  of  April — Penalty 
on  the  clerks  for  failure  to  deliver 
lists. 

42.  All  persons  employed  to  collect  taxes 

must  take  an  oath. 


Section 

43.  Sheriffs  by  themselves  or  their  depu- 

ties, or  in  case  of  their  deaths,  their 
sureties  to  collect  the  taxes - 

44.  Sheriffs  and  their    sureties  to  have 

one  year  to  collect  arrears. 

45.  Sheriffs  to  collect  a  double  tax  from 

those  who  neglect  to  give  in  their 
lists— Such  tax,  how  to  be  ascer- 
tained. 

46.  Sheriffs  to  give  notice  by  advertise- 

ment when  they  have  received  their 
lists — Penalty  on  sheriffs  for  failing 
to  collect  taxes  on  property  not 
given  in. 

47.  Sheriffs  and  their  sureties  may  dis- 

train and  sell  during  the  additional 
year. 

48.  Lands  may  be  distrained  and   sold 

when  there  is  no  personal  property. 

49.  When  a  person  is  about  to  remove, 

the  sheriff  may  proceed  forthwith 
to  levy  the  taxes  due  from  him. 

50.  Sheriff  to  give  ten  days'  notice  by  ad- 

vertisement, before  he  sells  personal 
property  for  taxes. 

51.  Sheriff  to  advertise  in  some  newspa- 

per in  Raleigh,  and  also  at  the 
court  house  of  his  county,  before  he 
sells  land  for  taxes. 

52.  Sheriff  to  return  to  the  county  court 

a  list  of  the  tracts  of  land  to  be  sold, 
which  list  shall  be  recorded,  &c. 

53.  To  return  a  list  of  the   lands  sold, 

the  name  of  the  purchaser,  &c., 
which  shall  be  recorded,  and  a  copy 
set  up  in  the  court  house. 

54.  Penalty  on    sheriffs  and  clerks   for 

failing  to  perform  the  duties  en- 
joined in  the  two  preceding  sec- 
tions. 

55.  Sheriff  to  sell  the  land  at  public  sale 

to  him  who  will  pay  the  taxes  and 

costs  for  the  smallest  part. 
55.  The  purchaser  to  choose  his  part  in 

a  compact  body. 
57.  Persons  whose  lands  are  sold,  may 

redeem  within  twelve  months. 
53.   Purchaser  to  have  his  lands  surveyed 

and  the  sheriff  to  execute  a  deed. 

59.  Penalty  on  the  county  surveyor  for 

refusing — If  he  refuseS;  another 
may  make  the  survey. 

60.  When  the  land  shall  be  struck  off  to 

the  governor  for  the  use  of  the  Stale. 

61.  How  the  deeds  of  the  sheriff  to  the 

governor  shall  be  perfected — Pen- 
alty on  the  clerks  for  failure  of  du- 
ty in  this  particular. 

62.  Sheriff  to  deposit  the  deeds  in  the 


510 


REVENUE. 


[Chap.  CII. 


Tax  on  real  es 
tate. 


What  real  es- 
tate shall  be 
subject  to  tax- 
ation. 


63. 


64. 


65. 


66 


67, 


Section 

secretary's  office— Lands  so  bid  off, 
to  be  deemed  vacant — Sheriff's  oath 
with  respect  to  such  lands. 

Sheriffs  to  be  allowed  for  the  taxes 
on  land  bid  off  for  the  gover- 
nor. 

Persons  purchasing  lands  sold  for 
taxes,  liable  for  accruing  taxes — 
Lands  to  revert  to  the  State  upon 
the  purchaser's  failing  to  com- 
ply- 

Where  a  sheriff  dies  or  goes  out  of 

office,  his  successor  may  make  a 
deed  for  lands  sold  for  taxes — What 
to  be  done  by  purchaser  before  ob- 
taining such  deed. 

Sheriffs  to   settle   with  comptroller, 

when. 

Sheriffs,  in  their  settlements,  to  de- 
signate the  different  sources  of  the 
taxes — Comptroller  to  give  the 
sheriffs  certified  copies  of  the  re- 
turns, to  be  deposited  with  the 
clerks. 

Sheriffs  to  return  upon  oath  to  the 
county  court  a  list  of  all  taxes  re- 
ceived from  merchants,  &c. — Such 
returns  to  be  recorded  and  publish- 
ed by  the  clerks. 

If  such  return  cannot  be  made  to 
court,  it  may  be  returned  and  filed 
with  the  clerk  in  vacation. 

The  clerk  shall  give  to  the  sheriff  a 
copy  of  the  return,  to  be  by  him  de- 
livered to  the  comptroller — Provi- 
sos. 

Penalty  on  sheriffs  for  failing  to  make 
returns  to  court  or  to  the  clerk. 

Duty  of  the  comptroller  when  he  sus- 
pects any  sheriff  of  making  any 
false  return  or  swearing  falsely. 

Clerks,  for  refusing  to  record  or  to 
certify  returns,  shall  be  liable  to  in- 


68. 


69. 


70 


71 


72 


73. 


75. 


76. 


Section 

dictment  for  a  misdemeanor  in  of- 
fice. 
74.  Sheriffs  to  render  a  list  of  persons 
who  paid  a  double  tax. 
Sheriffs  to  be  allowed  for  insolvent 
taxables — How  to  obtain  such  al- 
lowance. 
List  of  insolvents  to  be  advertised  by 
the  clerk. 
77.  Penalties  on  sheriffs  for  certain  vio- 
lations of  duty  in  relation  to  insol- 
vents. 
Sheriffs'  oath  on  settling  his  accounts 

with  the  comptroller. 
Oath  as  to  the  collection  of  delin- 
quent taxes — Penalty  for  collecting 
and  not  accounting  for  delinquent 
taxes. 
Sheriff's   commission  for  collecting 

taxes. 
His  pay  for  time  and   expenses  in 

making  his  settlement. 
Bond  to  be  given  by  sheriffs  for  the 

collection  of  the  public  taxes. 
Clerks    to  furnish    the   comptroller 
with  the  names  of  the  sheriffs  and 
their  sureties. 
Penalties  on  clerks  for  failing  to  fur- 
nish   comptroller    with  names   of 
sheriffs,  &c. ,  and  for  failing  to  make 
certain  returns. 
85.  Comptroller's  duty  when  the  sheriff 
or  other  accounting  officer  fails  to 
settle — Duty   of   the    treasurer    in 
taking  judgment  against  a  default- 
ing officer. 
Summary  judgment  may  be   taken 
against  all  accounting  officers. 
How  penalties   on    clerks,  justices 
and  sheriffs  shall  be  recovered. 
A  summary  judgment  may  be  taken 
by  the  treasurer  against  any  person 
indebted  to  the  State. 


78. 


79. 


80. 


81 


82 


83. 


84 


86 


within   this  State,  siib- 
every  hundred   dollars 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  there  shall  be  annually  levied  and  collected,  from  all  the  real 
property,  with  the  improvements  thereon, 
ject  to  taxation,  the  sum  of  six  cents  on 
value  thereof.     . 

2.  All  real  estate  held  by  deed,  grant  or  lease,  or  by  title  of 
dower,  or  courtesy,  or  otherwise,  shall  be  subject  to  the  payment 
of  public  taxes,  except  the  real  estate  belonging  to  the  university 
of  this  State,  and  such  houses,  lots  and  other  real  estate  as  are  set 
apart  and  appropriated  to  divine  worship,  or  for  the  education  of 


1.  1822,  c.  1129,  s.  1. 

2.  178-2,  c.  176,  s.  3.— 1786,  c.  254.— 1789,  c.  306,  s.  3.  — 1606,  c.  693. 


Jr^ytyu-  ^xyir^^^-y^^ouD  c:t/L<^  .    /^^  ?^  (S^ y^/.    y  ^.        'ir6'   ■    t/. 


Chap.  CIL]  revenue.  511 

youth,  or  the  support  of  the  poor,  and  except  also  such  real  pro- 
perty as  is  or  shall  be  exempted,  in  any  act  creating  a  society  or 
company  with  corporate  powers  and  privileges. 

3.  All  entries  of  land  shall  be  subject  to  taxation  like  other  real  Entries  of 

^   .  land  subject  to 

*^^^'*'-'^-  .  taxation. 

4.  If  any  person  shall  return,  as  his  taxable  property,  any  land,  Tax  on  real  es- 
and  shall  dispose  thereof,  before  the  taxes  due  thereon  shall  have  {?^^  ®|'=iil  ^^  a 
been   paid,  and  shall  have   no   estate   to  satisfy  said  taxes,  within 

reach  of  the  sheriff,  the  purchaser  of  said  land  shall  pay  the  taxes 
due  thereon,  and  may  be  proceeded  against  as  if  he  had  originally 
given  in  the  same. 

5.  A  tax  of  five  dollars  shall  be  laid  on  all  turnpike  roads  where  T?^^""^  ^"™"h 
toll  is  received,  and   on   all  gates,  which  have  been  or  hereafter  gates. 

may  be  erected  across  any  public  road  in  this  State,  which 
roads  and  gates  shall  be  given  in  at  the  same  time  that  real  estate 
is  given  in  for  taxation. 

6.  An  annual  tax  of  twenty  cents  on  each  and  every  free  male  poll,  pon  tax. 
between  the  ages  of  twentyone  and  fortyfive  years,   and  a  tax  of 
twenty  cents  on  each  and  every  slave  poll  of  both  sexes,  between 

the  ages  of  twelve  and  fifty  years,  shall  be  levied,  collected  and 
accounted  for  as  hereinafter  provided  :   Provided  alioays,  that  the  Proviso  as  to 
several  county  courts  shall  be  authorized  to  exempt  from  the  pay-  ^erupted  from 
mentof  poll  tax,  such  infirm  free  persons  as  they  may  think  proper  poll  tax. 
objects  ;  and  also  the  slaves  disabled  by  bodily  infirmities  or  void 
of  reason,  such  incapacity  to  be  judged  of  and   certified   by  the 
county  court,  shall  not  be  deemed  taxable  property,  nor  given  in 
as  such  by  their  respective  owners. 

7.  A  tax  on  all  stud   horses  and  jackasses  within  this  State,  ofTaxonstud 
the  highest  sum  which  the  owner  or  keeper  of  such  stud  horse  or  jackasses, 
jackass,  shall  ask  or  receive  for  the  season  of  one  mare,  shall  be 

levied,  collected  and  accounted  for  ;  and  all  stud  horses  and  jack- 
asses, which  are  not  stationed  in  any  one  county,  and  all  those  that 
may  be  brought  from  another  state  to  stand  for  a  less  term  than  the 
season  in  this  State,  shall  pay  the  sheriff  of  some  county  the  amount 
of  the  season,  as  soon  as  the  season  of  such  stud  horse  or  jackass 
shall  commence,  or  produce  a  certificate  from  a  justice  of  the 
peace  from  the  county,  from  whence  such  horse  or  jackass  came, 
(if  in  the  State,)  that  such  stud  horse  or  jackass  has  been  enlisted 
for  taxation,  and  it  shall  be  the  duty  of  the  sheriff  to  collect  the 
said  tax  ;  and  on  failure  of  the  owner  or  keeper  of  such  stud  horse 
or  jackass  to  pay  the  same  when  demanded,  it  may  be  lawful  for 
the  sheriff  to  distrain  for  the  same,  by  seizing  such  stud  horse  or 
jackass,  and  make  sale  thereof  for  the  tax. 

8.  All  owners  or  keepers  of  stud  horses  and  jackasses  shall  en-  stud  horses 
list  the  same  for  taxation,  as  other  taxable  property  is  enlisted,  and  ^^ncl  jackasses 
on  failure  of  such  owner  or  keeper  to   enlist  such  stud  horse  and 

3.  1795,  c  430,  s.  2. 

4.  1792,  c.  360,  s.  6. 

5.  1822,  c.  1129,  s.  7. 

6.  1822,  c.  1129,  s.  9  and  10.— 1782,  c.  7,  s.  5  and  8  of  Iredell's  revisal. 

7.  1821,  c.  1122,  s.  1. 

8.  1821,  c.  1122,  s.  2. 


512  REVENUE.  [Chap.  CII. 

jackass  as  aforesaid,  they  or  either  of  them   shall  be  liable  to  pay 

a  double  tax  for  such  horse  or  jackass. 
Tax  on  billiard      9-   The  owner  or  possessor  of  every  billiard  table  shall  give  in 
tables.  such  billiard  table,  in  the  same  manner   as  other  taxable  property, 

and  shall  pay  for  each  billiard  table,  a  tax  of  five  hundred  dollars  ; 
given  in  and  and  no  billiard  table  shall  be  kept  until  such  tax  shall  be  paid  to 
license  obtain-  ^j^g  sheriff  of  the  county,  in  which  such  billiard  table  is  or  may  be 

ed  lor  keeping  ,         ,  it  i  i  in 

them.  erected  or  kept  up,  and  a  license  to  erect  or  keep  the  same  shall 

be  first  granted  by  said  sheriff  ;  and  if  any  billiard  table  is  erected 
or  kept  up  without  such  license  first  had  and  obtained,  the  sheriff  of 
the  county,  where  such  table  is  or  may  be  erected  or  kept  up, 
shall  seize  and  destroy  the  same  by  burning. 
Taxonpedlers  10.  Each  and  every  person,  who  shall  peddle  in  any  county  in 
by  land.  [^jg  State,  and  not  on  a  navigable  stream,  goods,  wares  or  mer- 

chandise, not  of  the  growth  or  manufacture  of  this  State,  or  any 
wooden  clock,  or  the  machinery  or  materials  thereof,  or  jewelry, 
which  machinery  or  clock  shall  be  manufactured  of  materials,  not 
of  the  growth,  produce  or  manufacture  of  this  State,  shall  pay  to 
the  sheriff  of  each  and  every  county,  in  which  he  shall  so  peddle 
goods,  wares  or  merchandise,  or  jewelry,  or  any  wooden  clock, 
or  the  machinery  or  materials  thereof,  the  sum  of  twenty  dollars 
on  every  cart,  wagon  or  other  vehicle,  employed  in  the  transpor- 
tation of  said  goods,  wares  or  merchandise  :  Provided,  that  should 
two  or  more  persons  employ  one  cart,  wagon  or  other  vehicle  to 
transport  their  goods,  wares  or  merchandise,  each  and  every  of 
them  shall  pay  the  aforesaid  tax  on  said  cart,  wagon  or  other  vehi- 
cle by  them  employed,  nor  shall  any  thing  in  this  section  be  con- 
strued to  authorize  two  or  more  persons,  under  the  pretence  of 
being  partners  in  trade,  to  peddle  goods,  wares  or  merchandise  un- 
der the  same  license  ;  which  tax  shall  be  accounted  for  by  the 
sheriff  in  like  manner  as  other  public  state  taxes  ;  and  upon  paying 
such  tax  and  obtaining  a  receipt  therefor,  such  person  shall  be  au- 
thorized and  permitted  to  hawk  and  peddle  goods,  wares  and  mer- 
chandise, wooden  clocks,  or  the  machinery  or  materials  Avhich  shall 
not  be  of  the  manufacture  of  this  State,  or  jewelry  as  aforesaid,  in 
such  county  and  no  other,  for  the  term  of  one  year  thereafter  ; 
and  every  person  who  shall  peddle  goods,  wares  or  merchandise, 
not  of  the  growth  or  manufacture  of  this  State,  except  vegetables 
or  other  provisions  of  the  produce  of  the  United  States,  on  any 
Tax  on  pedlers  navigable  waters  in  this  State,  except  as  excepted  in  the  next  see- 
by  water.  tion,  shall  pay  to  the  sheriff  of  each  and  every  county  in  which  he 
shall  so  peddle,  twentyfive  dollars  as  a  tax  to  the  State,  to  be  levied 
and  accounted  for  as  above,  and,  on  payment  thereof,  shall  be  au- 
thorized and  permitted  to  peddle  goods  as  aforesaid,  in  such  county 
and  no  other,  for  the  term  of  one  year  thereafter  ;  and  each  and 
every  person,  who  shall  peddle  in  any  county  without  having  pre- 
viously paid  the  tax  thereon,  and  having  obtained  a  license  as 
hereinafter  directed,  or  who  shall  refuse  or  neglect,  upon  the  re- 
quest of  the  sheriff  or  his  lawful  deputy,  or  any  justice  of  the  peace, 

9.  1S22,  c  U29,  s.  5.— 1835,  c.  3,  3.  1. 
10.  1822,  c  1129,  s  2.— 1823,  c.  11S8. 


Chap.  CIL]  revenue.  513 

to  show  a  license  therefor,  shall  pay  a  tax  of  one  hundred  dollars, 
to  be  collected  by  the  sheriff  of  the  county  where  such  failure  takes 
place,  by  distress  and  sale  of  the  property  of  such  delinquent,  and  to 
be  applied  one  half  to  the  use  of  the  State,  and  the  other  half  to  the 
use  of  the  sheriff :  Provided  nevertheless,  that  nothing  in  this  act  tooks^onl^^^iiot 
contained  shall  extend  to  tax  persons  who  shall  sell  books  only  :  to  be  taxed. 
^nd  provided,  nothing  herein  contained  shall  exempt  the  persons 
thus  licensed,  from  being  liable  to  the  duties  imposed  on  those 
who  sell  goods,  wares  and  merchandise,  or  wooden  clocks,  or  the 
machinery  or  materials  thereof,  which  shall  not  be  of  the  manufac- 
ture of  this  State,  at  auction. 

11.  Any  person,  who  shall  peddle  goods,   wares  or  merchan- Tax  on  pedlers 
disc,  not  of  the  growth  or  manufacture  of  this  State,  except  vege-  sourif  slde'of  ^ 
tables  or  other  provisions  of  the  produce  of  the  United  States,  on  Albemarle 
the  south  side  of  Albemarle  sound,  and  the  waters  emptying  there-  on^RoknokT 
in  (Roanoke  and  Cashie  excepted,)  shall  pay  to  the  sheriff  of  each  and  Cashie. 
and  every  county,  in  which  he  may  so  peddle,  the  sum  of  five  dol- 
lars annually  as  a  tax  to  the  State,  to  be  levied,  collected  and  ac- 
counted for  as  other  taxes  upon  pedlers  :  Provided  however,  that 

nothing  in  this  section  contained  shall  be  construed  to  extend  to 
persons  peddling  on  the  land,  but  only  those  peddling  on  the  wa- 
ters aforesaid. 

12.  The  several  sheriffs  of  the  State  shall  collect  and  enforce  Tax  to  be  col- 
the  payment  of  the  taxes,  by  this  act  imposed  upon  pedlers,  not- J^g^p'^^g^^^j^y 
withstanding  the  pedler  may  rent  or  procure  houses  for  the  pur-  rent  a  tempo- 
pose  of  carrying  on  a  temporary  sale  of  goods.  ^^''^  ®^°'^^' 

13.  The  comptroller  shallissue  to  the  several  sheriffs  blank  licenses  The  comptrol- 
to  peddle  goods  within   this    State,   who   shall  upon  application  of  j^'^'-^j^g^j.^^^" 
any  person  desirous  to  traffic   and   peddle   goods,  countersign  and  blank  licenses 
issue  the  same  to  the  person  so  applying,  upon  his  paying  the  tax- f'"'^  P®'^-®'^®' 
es  imposed   by  this   act,  and   all  licenses,  so  issued  by  the  comp- 
troller and  dehvered  to  any  sheriff,  shall  stand  as  a  charge  against 

said  sheriff  for  the  amount  of  said  licenses,  and  the  sheriff  shall  be 
entitled,  in  the  settlement  of  his  public  accounts,  to  a  credit  for  all 
licenses,  by  him  not  issued  and  countersigned,  which  he  shall  re- 
turn to  the  comptroller,  and  the  comptroller  shall  annually  issue 
and  deliver  to  the  members  of  the  General  Assembly,  to  be  dehv- 
ered to  the  respective  sheriffs,  not  less  than  eight  licenses  for  each 
county,  before  the  rise  of  the  General  Assembly,  and  should  any 
sheriff,  who  shall  have  received  any  license  as  aforesaid,  resign,  or 
the  term  of  his  service  expire,  without  having  issued  the  license  so 
dehvered  to  him,  he  shall  deliver  the  same  to  his  successor,  and 
the  receipt  of  such  successor  shall  be  allowed  said  sheriff  in  the  ,^  ,. 
settlement  with  the  comptroller  :  Provided,  that  it  shall  not  be  law-  be  issued  to  a 
ful  for  the  sheriff  of  any.  county  to   issue   such  license,  unless  the  P'^'^l^r  but  on  a 

•  •  r»  CGrtiriC3.tG  TTom 

applicant  shall  first  dehver  to  such  sheriff,    a  certified  copy  of  an  the  county 
order  from  the  court  of  pleas  and  quarter  sessions  of  the  county,  "^oi^rt. 
for  which  the  license  is  wanted,  permitting  the  same  to  issue,  which 

-  11.  1826,  c.  5.— 1827, c.  38. 

12.  1822,  c.  1129,  s.  i6. 

13.  1822,  c.  1129,  s.  3.— 1835,  c.  17,  s.  1. 

VOL.  I.  65 


514  REVENUE.  [Chap.  CII. 

order  the  said  county  court  is  hereby  authorized  and  required  to 
make,  seven  or  more  justices  being  present,  upon  satisfactory  evi- 
dence of  the  good  moral  character  of  such  applicant. 
Tax  on  retail  14.  Every  merchant  or  jeweller,  who  shall  sell  goods,  wares 
merchants  and  and  merchandise,  not  of  the  growth  or  manufacture  of  this  State,  in 
jewe  ers.  ^^^^  retail  Store,  shall  pay  the  following  tax,  to  wit  :  if  the  amount 
of  his  capital  stock  in  trade  (which  capital  shall  comprehend  all 
purchases  of  goods,  wares  and  merchandise  made  within  the  year 
immediately  preceding  the  first  day  of  April,)  shall  be  between 
four  hundred  and  two  thousand  dollars,  a  tax  of  six  dollars  ;  if  be- 
tween two  thousand  and  five  thousand  dollars,  a  tax  of  eight  dol- 
lars ;  if  between  five  thousand  and  ten  thousand  dollars,  a  tax  of 
twelve  dollars  ;  if  between  ten  thousand  and  fifteen  thousand  dol- 
lars, a  tax  of  sixteen  dollars  ;  and  if  the  amount  of  his  capital  stock 
in  trade  as  aforesaid  shall  be  above  fifteen  thousand  dollars,  a  tax 
of  twenty  dollars  ;  and  every  wholesale  merchant  shall  pay  a  tax 
of  twentyfive  dollars,  and  every  commission  merchant  a  tax  of 
On  wholesale  fifteen  dollars,  and  every  such  merchant  or  jeweller  of  this  State, 
and  conrimis-  leaving  a  store  on  the  first  day  of  April  in  each  and  every  year, 
'  shall  apply  to  the  sheriff  of  the  county,  in  which  he  shall  have  such 
store,  and  tender  an  affidavit,  stating  the  amount  of  the  capital 
stock,  which  he  has  employed  in  trade  in  such  store,  and  shall  pay 
the  tax  thereon,  and  shall  receive  from  the  sheriff  a  license  to  keep 
the  same,  but  any  merchant,  unwilling  to  make  such  affidavit,  may 
obtain  such  license  by  paying  the  tax  of  twenty  dollars  ;  and  every 
such  merchant,  keeping  a  store  of  goods,  not  of  the  growth  and 
manufacture  of  this  State,  Vv^ithout  such  license,  shall  forfeit  and 
pay  the  sum  of  fifty  dollars,  to  be  levied,  collected  and  accounted 
for  as  other  pubhc  state  taxes  ;  and  every  person,  whether  resi- 
dent or  transient,  who  shall  open  such  store  at  any  time  after  the 
first  day  of  April,  shall  apply  to  the  sheriff  for  a  hcense,  which 
shall  be  granted  upon  such  applicant  giving  bond  and  security  to 
the  sheriff  to  pay  the  tax,  required  by  this  section,  on  the  amount 
of  such  goods,  wares  and  merchandise,  as  such  applicant  shall  sell 
between  the  time  of  such  application,  and  the  first  day  of  April 
succeeding,  under  the  same  penalties,  to  be  collected  in  the  same 
manner  as  the  other  penalties  hereby  imposed  ;  and  all  wholesale 
and  commission  merchants  shall  take  out  license,  in  the  same  man- 
ner and  under  the  same  regulations,  restrictions  and  penalties  as 
retail  merchants  and  jewellers,  except  that  they  need  not  tender 
the  affidavit  stating  the  amount  of  capital  stock  ;  and  it  shall  be  the 
duty  of  the  comptroller  to  issue  to  the  sheriff  of  each  county  blank 
licenses  for  merchants,  to  be  used  and  accounted  for  in  the  same 
manner  as  prescribed  in  the  case  of  pedlers. 
„  15.   Every  person,  using  the   profession  of  a  broker,  either  as 

brokers.  agent,  factor  or  princijtal,  dealing  in  the  sale  of  bills  of  exchange, 

or  the  purchase  of  the  bills  of  any  bank  incorporated  by  this  State, 
shall  be  subject  to  an  annual  tax  of  twentyfive  dollars  :  such  person, 
using  such  profession  or  any  branch  of  it,  shall  apply  to  the  sheriff 

14.  1822,  c.  1129,  s.  4. 

15.  1322,  c.  1129,  s.  U,  amended. 


Chap.  CIL]  revenue.  515 

of  the  county,  in  which  he  shall  intend  or  desire  to  pursue,  or  use 
such  profession,  and  shall  pay  said  tax,  and  obtain  from  the  said 
sheriff  a  receipt  therefor  ;  and  if  any  person  shall  pursue  or  exer- 
cise such  profession,  not  having  paid  such  tax,  he  shall  pay  a  tax 
of  fifty  dollars,  to  be  levied,  collected  and  accounted  for  as  other 
taxes. 

16.  All  persons,  who   shall  bring  negro  slaves  from  another  Tax  on  slaves 
state  into  this  State  for  sale,   shall  pay  to   the  sheriff  of  some  one  an°tger  sta^ 
county  the  sum  of  ten  dollars  upon  each  negro   slave  so  brought,  to  this  state 
and  it  shall  be  the  duty  of  the   respective  sheriffs  in  this   State  to  °''  ^^  ^" 
collect  the  tax  hereby  imposed  :  but  if  the  said  person  or  persons 

shall  produce  to  the  sheriff  of  any  one  county,  the  certificate  of  the 
sheriff  of  any  other  county,  duly  authenticated  under  the  seal  of 
the  clerk  of  the  county,  in  which  such  sheriff  resides,  that  he  has 
paid  the  tax  hereby  imposed,  he  or  they  shall  be  permitted  to  pro- 
ceed without  the  payment  of  any  further  tax  :  and  it  shall  be  the 
duty  of  the  sheriff"  of  each  county,  into  which  any  negro  slave  shall 
be  taken  by  any  person  or  persons  whatsoever,  to  seize  such  negro 
slave,  until  the  tax  hereby  imposed  be  paid,  or  until  he  or  they 
shall  produce  to  the  sheriff  an  affidavit,  subscribed  by  him  or  them, 
before  some  justice  of  the  peace  within  this  State,  duly  authenti- 
cated by  the  certificate  of  the  clerk  and  seal  of  the  court  of  the 
county,  setting  forth  that  the  slave  or  slaves  so  seized  were  not, 
hy  him  or  them  or  any  other  person  with  his  or  their  privity  and 
consent,  brought  in  evasion  or  elusion  of  the  revenue  laws  of  this 
State  :  and  any  person,  guilty  of  making  any  false  affidavit  for  such 
person,  shall  on  conviction  be  deemed  guilty  of  wilful  and  corrupt 
perjury,  and  the  owners  or  possessors  of  all  such  slaves,  so  seiz- 
ed, shall  pay  to  the  sheriff  all  expense,  that  may  accrue  in  conse- 
quence of  seizing,  keeping  and  feeding  such  slaves  ;  and  the  slaves, 
so  seized,  may  be  detained  by  the  sheriff  until  such  payment  ;  and 
in  default  thereof,  the  said  sheriff  may  sell  the  same  at  public  auc- 
tion, at  the  court  house  of  the  county,  upon  twenty  days  previous 
notice,  which  sale  shall  convey  an  absolute  title  to  the  purchaser. 

17.  Each  and  every  person  or  company  of  stage  players,  sleight  '^^°^  sle^\t 
of  hand  performers,  rope  dancers,  tumblers  and   wire  dancers,  orof  Hand'per- 
company  of  circus  riders  or  equestrian  performers,  and  each  and  [°g™'^of  ^ur^^d''. 
every  person  or  company,  who  shall  exhibit  artificial  curiosities  of  hies,  &c. 

any  kind  or  sort,  except  models  of  useful  inventions,  for  a  reward,  fui'fnlen'tLnr' 
shall,  previously  to  exhibiting  or  performing  in  any  county  of  this  excepted. 
State,  pay  to  the  sheriff  thereof  thirty  dollars  ;  and  every  person 
or  company,  who  shall  exhibit  natural  curiosities  of  any  kind  or 
sort,  the  sum  of  fifteen  dollars,  as  a  tax  to  the  State,  to  be  account- 
ed for  by  the  sheriff  as  other  state  taxes  ;  and  on  paying  such  tax, 
the  sheriff  who  receives  the  same  shall  give  a  license  to  exhibit  in 
his  county,  which  license  shall  contain  a  list  of  such  animals  or 
personal  performances  or  other  articles  to  be  exhibited,  and  in  that 
case  such  company  or  person  shall  be  authorized  and  permitted  to 
perform  and  exhibit,  as  aforesaid,  in  such  county  and  no  other,  for 

16.  1822,  c.  1129,  s.  8. 

17.  1822,  c.  1129,  S.  6.— 1830,  C.  11. 


516 


REVENUE. 


[Chap.  CIL 


justice  or  con- 
stable, when 
demanded. 

Penalties  for 
refusal. 


the  space  of  one  year  thereafter  ;    and  each  and  every   itinerant 
stage  player,  sleight  of  hand  performer,  rope  dancer,   tumbler,  or 
wire  dancer,  or  company  of  circus  riders  or  equestrian  performers, 
or  exhibitors  of  artificial  or  natural  curiosities,  except  the  exhibitors 
of  models  of  useful  inventions,  who  shall  perform  or  exhibit  in  any 
county  in  this  State,  without  previously  having  paid  the  tax  herein 
directed,  shall  be  liable  to  a  forfeiture  of  sixty  dollars,  to  be  col- 
lected by  the  sheriff  by  distress  and  sale  of  the  property  of  such 
delinquent,  and  to  be  apphed  one  half  to  the  use  of  the  State  and 
the  other  half  to  the  use  of  the  sheriff. 
Pedlers,  stage        18.   It  shall  be  the  duty  of  all  pedlers,  stage  players,  sleight  of 
exlubit'theii-  ^"^^^nd  performers,  rope  dancers,  tumblers,  wire  dancers,  company 
licenses  to  any  of  circus  riders  Or  equestrian  performers,  and  all  exhibiters  of  natu- 
ral and  artificial  curiosities,  to  exhibit  their  licenses  to  any  justice 
of  the  peace  or  constable,  who  may  demand  a  view  thereof,  and  if 
he  or  they  shall  neglect  or  refuse  to  show  his  or  their  license,  when 
so  demanded,  he  or  they  shall  forfeit  and  pay  the  sum  of  twenty 
dollars  for  every  such  neglect  or  refusal  :  if  any  such  neglect  or 
refusal  shall  occur  before  a  justice  of  the   peace,  it  shall  be  the 
duty  of  such  justice  forthwith  to  issue  his  warrant,  in  the  name  of 
the  wardens  of  the  poor  in  said  county,  against  such  offender,  and 
upon  the  return  thereof  to  enter  up  judgment  and  issue  execution 
for  the  said  sum  of  twenty  dollars  and  costs,  which  said  sum  shall 
be  for  the  use  of  the  wardens  of  the  poor  ;  and  if  such  neglect  or 
refusal  shall  happen  before  a  constable,  it  shall  be  his  duty  to  arrest 
the  person  or  persons,  so  neglecting  or  refusing,  and  carry  him  or 
them  before  some  justice  of  the  peace,  who  may  upon  warrants, 
issued  for  that  purpose,  give  judgment  and  issue  execution  forth- 
with for  the  said  sum  of  twenty  dollars  and  costs,  which  said  sum 
shall  be  one  half  to  the  use  of  the  constable,  and  the  other  half  to 
the  use  of  the  wardens  of  the  poor.     Provided,  that  in  either  case 
the  defendant  shall  have  the  right  to  stay  the  execution,  or  appeal 
from  such  judgment,  on  giving  security  as  in  other  cases  of  appeals. 
Duty  of  con-         19.   It  shall  be  the  duty  of  all  constables   to  demand  a  view  of 
stables  to  de-    +}-,q  Jjcense  of  any  pedler,  who  may  be  peddline:  in  his  county,  and 

1113.11(1  3.  VIBW  01.  .*^  J  1  O  ,, 

such  licenses,  a  view  of  the  license  of  any  actors,  performers  or  exhibiters,  as 
aforesaid,  who  may  act,  perform  or  exhibit  in  his  county,  and  on 
his  or  their  refusing  to  exhibit  such  hcense,  to  prosecute  for  the 
penalty  imposed  by  the  last  section. 

20.  Every  person,  who  has  obtained  from  the  county  court  a 
license  to  retail  spirituous  liquors  by  the  small  measure,  according 
to  the  provisions  of  law  in  such  cases,  shall,  immediately  on  obtain- 
ing a  certificate  thereof  from  the  clerk,  deliver  the  same  to  the 
sheriff,  and  pay  into  his  hands  the  sum  of  four  dollars,  and  receive 
therefor  a  license,  signed  by  the  comptroller  and  countersigned  by 
the  sheriff,  which  said  hcenses  the  comptroller  is  directed  to  issue 
blank  to  the  several  sheriffs  in  this  State,  at  the  same  time  and 
under  the  same  rules  and  regulations  and  to  be  accounted  for  by 


Tax  on  retail- 
ers of  spirit- 
uous liquor. 


18.  1831,  c.  1,  s.  7  and  8. 

19.  1831,  c.  1,  s.  9. 

20.  1825,  c.  1272,  s.  1  and  3. 


Chap.  CIL]  revenue.  517 

the  sheriffs  in  the  same  manner,   that  the  pedlers'  licenses  are  di- 
rected to  be  issued  and  accounted  for. 

21.  Every  person,  obtaining  a  license  to  keep  an  ordinary  or  Tax  on  tavern 
house  of  entertainment,  according   to  the  provisions  of  the  law  in  '^^P'^''^- 
such  cases,  shall  pay  to  the  sheriff,   at  the  time  of  paying  other 

public  taxes,   a  tax   of  four  dollars  to  be   accounted  for  as  other 
public  state  taxes. 

22.  The  last  twenty  working  days  in  July,   in  every  year,  are  Time  when  the 
hereby  established,  as  the  time  when  the  lists  of  property  required  l>^|^  of*^^^- 
to  be  Hsted   for  taxation,   shall  be  taken  in  every  county  in   the  taken. 
State. 

23.  At  the  respective  courts  of  pleas  and  quarter  sessions  in  County  courts 
each  county,  which  shall  first  happen  after  the  first  day  of  April  in  ,°cef  to't'ake^''' 
every  year,  the  justices  for  taking  the  hsts  of  taxable  property  shall  lists. 

be  appointed,  and  the  clerks  of  the  several   courts  aforesaid  shall 

give  notice  thereof,  with  a  list  of  the  names  of  said  justices,   and  justices  to  be 

of  the  districts  for  which  they  were  appointed,  in  the  course  of  the"otified  of  their 

,  .    ,         .  ,  .         •'  111  •   •  1  apponitment  — 

term,  m  which  said  appointments  are  made,  by  advertising  the  same  to  appoint 

at  the  court  house.      The  clerks  shall  issue   notices  of  such   ap- pl^9«^^ oj" 

pointments  to  the   sheriff  of  the  county,  who  shall  serve  the   same  Usts.^ 

within  ten  days  on   the  justices  so  appointed,  and  it  shall  be  the 

duty  of  each  of  the  justices  so  appointed  to   advertise,   at  three 

different  places  in  the  district,  for  which  he  is  appointed,  at  least 

ten  days  before  the  days  estabhshed  for  giving  in  the  list  of  taxables, 

the  place  whereat  he  will  attend  to  receive  the  same,   and  if  any 

justice  of  the  peace  so  appointed  shall  become   incapable,    die   or 

remove  out  of  the  county,  before  the   duties  of  his  appointment 

shall  be  performed,  then  any  three  other  justices  of  the  county,  on  mav^appobr* 

notice  of  such  death,  incapability  or  removal  being  given  them  in  one  to  take  list 

writing  by  the  sheriff,  may  and  they  are  hereby  authorized   and  ^'^^^^j^^  *; 

required  to  appoint  some  other  justice  of  the  peace  to  perform  the 

duties  of  the  person  so  becoming  incapable. 

24.    The  inhabitants  of  the  respective  districts  in   each  county  ^°yf  l^'^  l*^*^* 

1     ,1  1  1  •  ,      1       '^  .,,,..  r      shall  be  given 

shall  attend,  at  the  time  and  places  appointed  by  the  justices  lor  in. 
taking  the  hsts  of  taxables,  and  shall  return,  on  oath  in  writing  to 
the  justice  appointed  to  receive  the  same,  each  and  every  tract  of 
land,  for  which  they  are  liable  to  pay  tax  in  the  county,  stating  the 
number  of  acres  of  each  separate  tract,  its  local  situation  and  the 
improvements  thereon,  the  number  of  town  lots  with  their  improve- 
ments, the  number  of  free  males  between  the  ages  of  twentyone 
and  fortyfive  years,  living  in  their  families,  also  all  free  negroes  and 
mulattoes  between  those  ages  living  on  their  lands  with  their  con- 
sent, the  number  of  slaves  male  and  female  between  the  ages  of 
twelve  and  fifty  years,  which  to  them  belong,  or  who  live  in  their 
family,  said  slaves  to  be  listed  in  the  county  where  they  reside,  all 
stud  horses  and  jackasses  of  which  they  may  be  the  owners  or 
keepers,  all  the  turnpike  roads  where  toll  is  received,    and  gates 

21.  1798,  c.  501,  s.  3. 

22.  1801,  C.570,  s.  1. 
23  1801,  c.  570,  s.  2. 

24.  1784,  c.  195,  s.  1.— 1819,  c.  999,  S.  1.— 1825,  c.  34.— 1822,  c.  1129,  s.  5,  7,  9  and 
10.— 1821,  c.  1122,  s.  2. 


518 


REVENUE. 


[Chap.  CII. 


Tax  lists  to  re 
fer  to  the  first 
day  of  April 
preceding. 


A  person 
coming  of  age 
after  that  day 
may  list  him- 
self and  pay 
immediately. 


By  whom  the 
lists  of  ab- 
sentees, testa- 
tors, minors, 
&c.  shall  be 
given  in. 

If  owner  fails 
to  give  in  his 
lands,  the  jus- 
tice may  ap- 
point a  free- 
holder to  value 
it. 


In  case  of  fail- 
ure by  the  own- 
er and  justice, 
the  sheriff  to 
have  the  laud 
valued  by  a 
freeholder. 


Duty  of  such 
litjviiioiUer, 


across  any  public  road  in  this  State,  and  all  billiard  tables,  and  the 
oath  to  be  administered  by  the  justice,  receiving  such  hst,  shall  be 
as  follows,  (viz  :)  "  You  do  swear  (or  affirm  as  the  case  may  be) 
that  this  list  by  you  delivered,  contains  a  just  and  true  account  of 
all  the  property,  which  by  law  you  are  bound  to  list  for  taxation,  to 
the  best  of  your  knowledge  and  belief.      So  help  you  God." 

25.  The  lands,  town  lots  and  slaves  and  other  taxable  properly, 
unless  otherwise  provided,  required  to  be  listed  according  to  the 
preceding  section,  shall  be  such  as  were  the  property,  or  in  the 
possession  of  their  respective  owners,  on  the  first  day  of  April  in 
each  and  every  year,  and  the  free  polls  shall  be  such  as  were  taxa- 
ble on  that  day,  and  in  all  cases,  where  any  person  shall  come  of 
age  after  the  said  first  day  of  April,  and  before  any  election  held 
during  the  year  next  ensuing  the  first  day  of  April  aforesaid,  it 
shall  be  lawful  for  such  person,  then  coming  of  age,  to  list  himself 
before  the  sheriff  or  his  deputy  as  of  the  said  first  day  of  April, 
and  immediately  pay  the  poll  tax  of  that  year,  and  the  sheriff  is 
hereby  required  to  receive  the  same  and  account  therefor  as  for 
other  public  taxes. 

26.  Lists  of  the  real  and  other  taxable  estate  of  testators,  intes- 
tates, minors,  lunatics  and  persons  non  compos  mentis  and  absentees, 
shall  be  returned  and  given  in  by  the  executors,  administrators, 
guardians,  agents  and  attorneys,  in  the  same  manner  as  the  estates 
of  other  persons. 

27.  If  any  person,  owning  lands  in  any  county  within  this  State, 
or  any  non-resident,  shall  fail  to  return,  either  by  himself  or  agent, 
to  the  justice  appointed  to  take  the  list  of  taxable  property  in  the 
district  in  which  the  land  of  such  owner  or  non-resident  may  be 
situated,  a  list  of  his  land  with  the  number  of  acres,  in  ndanner  here- 
in before  prescribed,  it  shall  be  the  duty  of  the  said  justice  of  the 
peace  to  appoint  a  freeholder,  acquainted  with  the  lands,  to  value 
the  same  on  oath  within  five  days,  and  return  the  valuation  to  the 
said  justice.  And  the  said  freeholder  shall  receive  a  compensation 
of  one  dollar  for  each  tract  by  him  valued,  to  be  levied  and  col- 
lected by  the  sheriff,  at  the  time  he  collects  the  taxes  on  the  said 
lands,  if  not  previously  paid  by  the  owner,  and  under  the  same 
rules,  regulations  and  restrictions. 

28.  When  any  person  shall  have  failed,  either  by  himself,  agent 
or  guardian,  to  list  his  lands,  and  the  justice  appointed  to  take  the 
list  of  taxable  property  shall  have  failed  to  have  the  same  assessed, 
according  to  the  provisions  of  the  last  section,  it  shall  be  the  duty 
of  the  sheriff,  within  the  time  prescribed  for  collecting  the  taxes, 
to  summon  one  freeholder,  near  to  or  acquainted  with  the  land, 
whose  duty  it  shall  be,  within  five  days  after  such  notification,  to 
value  said  lands  on  oath,  which  the  sheriff  or  his  lawful  deputy  is 
hereby  authorized  to  administer.  And  it  shall  be  the  duty  of  such 
freeholder,  summoned  as  aforesaid,  to  transmit  under  his  hand  a 


25.  1734,  c.  195,  s.  1,  amended- 

26.  1782,  c.  176,  s.  2.— 1819,  c.  999,  s.  I. 

27.  1819,  c.  999,  s.  9. 

28.  1819,  c.  999,  S.  9. 


Chap.  CIL]  revenue.  519 

fair  transcript  of  such  valuation  to  the  clerk  of  the  county  court,  at 
or  before  the  succeeding  county  court,  and  also  to  deliver  to  the 
sheriff  another  transcript  of  the  same,  within  ten  days  after  the 
valuation  aforesaid  ;  and  the  said  freeholder  shall  receive  a  compen- 
sation for  his  services,  as  assessor,  of  one  dollar  for  every  tract  of 
land  by  him  assessed,  to  be  levied  and  collected  by  the  sheriff  at 
the  time  he  collects  the  taxes  on  said  land,  if  not  previously 
paid  by  the  owner  ;  and  the  clerk  of  the  county  court  shall  incor- 
porate the  returns  made  by  the  freeholders  aforesaid  with  those 
made  by  the  justices. 

29.  Any  person,   appointed  or  summoned,  by  the  justices  or  Penalty  on  free- 
sheriff  as  aforesaid,  to  value  lands,  who  shall  refuse  or  fail  to  per- sin„"o^act" 
form  the  duties  required  by  the  two  last  sections,  shall  forfeit  and 

pay  the  sum  of  fifty  dollars,  to  be  recovered  in  the  name  of  the 
State  to  the  use  of  the  county. 

30.  The  valuation  of  land  and  their  improvements  shall  be  made  "Valuation  of 
in  dollars  and  cents,  and  town  property  shall  be  given  in  and  as-  dollars  and 
sessed  in  the  same  manner  as  prescribed  for  other  real  estate.  cents— How 

31.  When  a  tract  of  land  shall  be  in  two  or  more  counties,  the  to  be  given  in 
owner  shall  be  bound  to  list  the  same  in  the  county  where  he  re- and  assessed. 
sides,  if  he  resides  in  either  of  the  counties,  and  if  not,  then  he  ^ .^'"^'^^  ° V^^^ 

1-         1  •  •  1  c     1  -1  •  1  •  .lying  partly  in 

may  list  the  same  in  either  oi   the  said  counties  ;  and  in  case  oi  two  counties, 
transmittins;  a  list  of  taxable  property,  from  the  county  in  which  "^^'^■"'^  .'^°  ^^ 

,       ,  ,  ,  .  ■     2'iv6n  in. 

the  person  bound  to  list  it  resides,  to  that  in  which  the  property  is 
situate,  the  oath  required  to  the  list  may  be  taken  before  any 
magistrate  of  the  county,  in  which  the  person  bound  to  return  the 
same  resides. 

32.  It  shall  be  the   duty  of  the  several  county   courts   in  this  County  court 
State,  at  the  respective  terms  when  they  appoint  justices   of  the  ^jj^j^''j^"'^|i^^ 
peace  to  take  in  the  list  of  taxable  property,  for  the  year  one  thou-  tices  appointed 
sand  eight  hundred  and  thirtyseven,  to  appoint  two  respectable  free-  \°J^  ^J^  fj.ggf 
holders  to  be  associated  with  each  justice,  who  together  with  such  holders  to  form 
justice  shall  be  styled  "the  board  of  valuation."     It  shall  be  the  ^j^Siu  °^ ''''^' 
duty  of  the  board  of  valuation  to  ascertain,  as  accurately  as  may  be  Duty  of  the 
practicable,  the  cash  valuation  of  the  land  in  the  district  to  which '^°ar'i  m  as- 
they  belong,  and  to  return  the  same   to   their  respective   county  value  of  lands, 
courts,  in  the  manner  herein  prescribed  :   Provided,   said  justice 

and  freeholders  may,  if  they  deem  it  necessary,  call  upon  any  per- 
son to  testify  as  to  the  value  of  any  tract  which  may  be  listed,  and 
they  are  authorized  in  such  case  to  administer  an  oath  to  any  per- 
son so  called  upon.  No  person  giving  in  his  land  for  taxation  shall 
hereafter  be  required  to  state  the  value  thereof  upon  oath,  and  if  any 
individual  shall  deem  himself  injured,  by  too  high  a  valuation  being 
placed  upon  his  land  by  the  board  aforesaid,  it  shall  be  competent 
for  the  ensuing  county  court  to  reduce  the  same,  upon  motion  and 
satisfactory  proof  of  such  allegation.  The  individuals  comprising 
the  said  board  of  valuation  shall  annex  to  their  respective  returns 
the  following  affidavit,  signed  by  them  and  certified  by  some  justice 

29.  1819,  c.  999,  S.  10. 

30.  1S19,  c.  999,  S.  12. 

31.  1819,  c.  999,  s.  11.  ) 

32.  Amendment. 


Kc-assers^i  ,  /  if^S-.  cl-  i7.  rL 


520 


REVENUE. 


[Chap.  CIL 


Their  compen- 
sation. 


Persons  failing 
to  give  in  their 
lists,  to  pay  a 
double  tax. 

Lands  of  a 
minor,  &c. 
not  to  be  sold 
for  taxes. 

Justices  ap- 
pointed to  take 
the  lists,  to  re- 
turn a  copy  of 
such  lists  m  al- 
phabetical 
order  to  the 
next  county 
court. 


Clerks  to  re- 
turn abstracts 
of  the  lists  to 
the  comp- 
troller. 

Penalty  on  the 
clerks  for  fail- 
ing to  do  so ; 
and  duty  of 
the  comptroller 
and  attorney 
general  in  re- 
gard to  such 
failure. 


Form  of  the 
lists  to  be  re- 
turned by  the 
justices. 


of  the  peace  :  "  We  solemnly  swear,  that  the  foregoing  valuations 
of  land,  made  by  us,  are,  in  our  judgment  and  belief,  the  actual 
value  thereof  in  cash,  and  that  in  making  the  same,  we  have  endea- 
vored to  do  equal  justice  to  the  pubhc,  and  to  the  individuals  con- 
cerned :  so  help  us  God."  And  the  said  justice  of  the  peace  and 
freeholders  shall  each  be  entitled  to  receive  the  sum  of  one  dollar 
per  day,  for  each  day  they  may  be  necessarily  engaged  in  making 
said  valuation  and  returns,  to  be  paid  out  of  the  taxes  levied  for 
county  purposes. 

33.  If  any  person,  bound  to  list  lands  or  other  property,  either 
in  his  own  right  or  as  executor,  administrator,  guardian  or  agent, 
shall  fail  or  neglect  so  to  do,  he  shall  pay  a  double  tax,  to  be  col- 
lected by  the  sheriff  out  of  his  individual  properly,  notwithstanding 
his  failure  or  neglect  may  be  as  representative  of  another  ;  and  it  is 
expressly  declared  that  the  lands  of  a  minor,  lunatic  or  person  non 
compos  mentis,  shall  in  no  case  be  liable  to  be  sold  for  taxes. 

34.  The  justices,  appointed  to  take  the  list  of  taxables  in  each 
county,  shall  make  out  a  fair  copy  of  the  lists  of  lands  by  them  taken, 
in  alphabetical  order,  with  the  number  of  acres  and  valuation  an- 
nexed, and  return  the  same,  together  with  the  list  of  other  taxable 
property  by  them  taken,  to  the  clerk  of  the  county  court,  at  the 
next  succeeding  court,  which  may  happen  after  the  time  prescribed 
for  taking  the  list  of  taxable  property,  and  the  clerks  of  the  several 
county  courts  are  hereby  required  to  return  to  the  comptroller,  on 
or  before  the  first  day  of  September,  in  each  and  every  succeed- 
ing year  thereafter,  an  abstract  of  such  lists,  showing  the  number 
of  acres  of  land  so  listed,  the  valuation  thereof,  and  the  valuation 
of  town  property,  which  shall  be  contained  in  said  lists.  Any 
clerk,  failing  to  make  return  of  the  abstract  herein  required,  shall 
forfeit  and  pay  the  sum  of  one  hundred  dollars,  to  be  recovered  in 
the  superior  court  of  Wake  county,  on  motion  by  the  attorney  gen- 
eral. And  it  shall  be  the  duty  of  the  comptroller  to  inform  the 
attorney  general  of  all  such  delinquent  clerks,  and,  on  the  trial  of 
the  motion,  the  certificate  of  the  comptroller,  certifying  such  fail- 
ure, shall  be  sufficient  evidence  thereof  ;  the  forfeiture  thus  recov- 
ered shall  be  paid  into  the  public  treasury  of  the  State  by  the  clerk 
of  the  superior  court  of  Wake  county,  and  on  failure  to  do  so,  he 
and  his  sureties  shall  be  liable  on  his  bond,  in  a  suit  at  the  instance 
of  the  State. 

35.  The  justices,  in  the  lists  which  they  shall  return  to  the 
clerks  of  their  respective  county  courts,  shall  distinguish  the  per- 
sons' names,  the  several  tracts  of  land,  the  quantity  and  situation 
of  each  tract  with  its  reasonable  value,  the  town  lots,  the  number 
of  polls  white  and  black,  and  the  several  other  subjects  of  taxa- 
tion, which  are  required  to  be  listed,  in  the  following  manner  : 


33.  1319,  c.  999,  s-  5. 

34.  1819,  c.  999,  s.  7.- 

35.  1784,  c.  195,  s.  3. 


-1806,  c.  699,  s.  3 — Amended. 


Chap.  CIL] 


REVENUE. 


521 


s 

VI 

o 

m 

Quantity  of  each 
tract  of  land  with 
its  situation. 

V^alue  of  each 
Tract. 

CO 

O, 

c 

& 

o 

a, 

-  s 

C 

a    . 

CD    aJ 

O   cfl 

m 

Gates  and  Turn- 
pike Roads. 

36.  The   several  iustices,   appointed  to  receive  lists  of  taxa- ^f^^  J^/'?^*^®  ^° 

*',  ■*-  ^  ,  .  return,  uis  own 

bles,   shall  make  their   return  of  their  own  hsts  to   the   county  lists, 
courts. 

37.  If  any  justice,  appointed  to  receive  lists  of  taxable  property,  Penalty  on  jus- 
shall  fail  or  neglect  to  discharge  the  duty  of  his  appointment,  he^  take^lists^for 
shall  forfeit  and  pay  two  hundred  dollars,  to  be  recovered  in  the  failure  of  duty, 
name  and  to  the  use  of  the  State  ;  and  if  any  clerk  of  the  court  of 

pleas  and  quarter  sessions  shall  fail  or  neglect  to  make  return  of  an 
abstract  of  the- list  of  taxables  to  the  comptroller,  as  prescribed  in 
the  thirtyfourth  section,  he  shall  forfeit  and  pay  one  thousand  dol- 
lars, to  be  sued  for  by  the  attorney  general,  in  the  name  and  for 
the  use  of  the  State. 

38.  Where  it  shall  appear  to  the  satisfaction  of  any  of  the  county  County  courts 
courts  of  this  State,  that  any  person  is  charged  with  more  land  or  ^rtificate  t^  be 
polls,  on  his  list  of  taxable  property,  than  he  ought  to  pay  for,  the  received  by  the 
said  court  may  order  their  clerk  to  give  a  certificate  for  the  quan-^]^P''[{^g^^'^ig 
tity  of  acres  and  their  value,  or  polls  so  overcharged,  which  cer- overcharged, 
tificate  shall  be  received  by  the  comptroller  of  the  State,  and  be 
deducted  by  him  from  the  amount  of  valuation  of  land  or  number 

of  polls,  to  be  accounted  for  by  such  sheriff. 

39.  The  clerk  of  each  county  court  shall   record  at  length,  in  Clerks  to 
alphabetical  order,  the  annual  returns  made  by  the  justices  in  his  [fg'ts^  and^set  up 
county,  and  the  court  shall  make  a  reasonable  allowance  for  such  copies  of  them 
service,  to  be  paid  out  of  the  county  tax  ;  and  the  said  clerks  shall  j^^^ge.^"^"^ 
also,  at  the  next  court  after  the  returns  of  the  taxable  property  are 

directed  to  be  made,  set  up,  in  some  conspicuous  part  of  the  court 
house,  an  alphabetical  list  of  the  taxables  and  taxable  property,  de- 
livered or  reported  by  the  persons  appointed  to  take  the  list  of 
taxable  property,  adding  to  each  person's  taxable  property,  the 
amount  of  the  tax  for  which  he  may  be  liable,  and  any  clerk,  ne- 
glecting or  refusing  to  perform  the  duties  here  required,  shall,  for 
every  such  neglect  or  refusal,  forfeit  and  pay  one  hundred  dol- 
lars, to  any  person  who  will  sue  for  the  same  within  six 
months. 

40.  If  any  justice  of  the  peace  shall  receive  any  person's  list  of  ?^n?i'y„°" '^ 

1  ,  •'    ''  .  ,  I  .  ,  ,  ■',  '  -^  .  justice  lor  re- 

taxable  property,  without  taking  such  person  s  oath  or  amrmation,  ceivinga  list 
as  the  case  may  be,  the  justice  so  acting  shall  forfeit  and  pay  one  without  an 
hundred  dollars  for  the  use  of  the  State. 

41.  The  clerks  of  the  several  county  courts  shall,  within  thirty  days  The  clerks  of 

•'  '  ■'   •'  the  county 


36.  1784,  c.  195,  s.  5. 

37.  1784,  c.  195,  s.  4.— 1806,  c.  099,  s.  3. 
3S.  1803,  c.  639. 

39.  1784,  c.  195,  s.  4.— 1786,  c.  255,  s.  2.- 

40.  1788,  c.  282. 

41.  1819,  c.  999,  s.  8.— 1822,  c.  1129,  s.  14. 

VOL.  I.  66 


1798,  c.  506. 


522 


REVENUE. 


[Chap.  CII. 


of  April 
Penalty  on  the 
clerks  for  fail- 
ure to  deliver 
lists. 


t)e 
plo 


courts  to  de-  after  the  court  to  which  the  lists  are  returned,  has  finished  its  ses- 
sherife  copies  sion,  deliver  to  the  sherifis  of  their  respective  counties  a  fair  and 
of  the  lists  re-  accurate  copy  of  the  returns  made,  in  alphabetical  order,  designa- 
turned.  ^j^g  -^^  ^^^j^  ^opy  the  Separate  amount  of  taxes,  due  and  accruing 

from  each  species  of  property,  and  in  addition  thereto  shall  extend 
the  aggregate  amount  due  from  each  individual  ;  and  the  respective 
^^TP collect '^^^^'"^^^  ^^^^^'  proceed,  after  the  first  day  of  April  in  each  and  every 
after  the  first  year,  to  coUect  the  said  taxes,  to  be  accounted  for  at  the  time 
and  in  the  manner  hereinafter  provided  for,  and  if  any  clerk  shall 
fail  or  neglect  to  furnish  said  Hsts  as  herein  directed,  he  shall  for- 
feit and  pay  two  hundred  dollars  to  the  use  of  the  State,  to  be 
sued  for  by  the  sheriff  in  the  name  of  the  State. 

42.  Deputy  sheriffs,  and  all  other  persons  that  shall  be  employ- 
ed by  the  sheriffs  of  any  county  to  collect  the  pubhc,  county  and 
parish  taxes,  shall,  before  they  enter  on  the  collection  of  either  of 
the  aforesaid  taxes,  take  an  oath,  in  open  court,  or  before  any  two 
justices  of  the  peace,  where  such  deputy  sheriff,  or  collector  may 
reside,  faithfully  and  honestly  to  account  for  all  moneys,  that  may  be 
received  by  them  in  the  capacity  of  collectors. 

43.  It  shall  be  the  duty  of  each  and  every  sheriff,  by  himself, 
their  deputies,  his  deputy  or   Other  person   appointed  for  the  purpose,  to  collect 

the  taxes  in  their  respective  counties,  and  if  any  sheriff  shall  die, 
shortly  before  or  during  the  time  appointed  for  the  collection  of 
public  taxes,  so  that  a  successor  in  office  cannot  be  appointed  be- 
fore the  time  for  collecting  the  taxes,  in  such  case  it  shall  be  law- 
ful for  their  securties  to  proceed  in  the  collection  of  said  taxes  ;  in 
which  business  they  are  hereby  declared  to  have  all  the  power, 
authorities,  privileges  and  emoluments,  in  and  for  the  receipt  and 
collection  of  pubhc  taxes,  which  the  sheriff  deceased  possessed 
and  enjoyed. 

44.  The  several  sheriffs,  and  in  case  of  their  death,  their  sure- 
ties, shall  have  one  year,  from  the  day  prescribed  for  the  settle- 
ment of  the  public  accounts,  to  finish  the  collection  of  the  taxes 
they  are  bound  by  law  to  account  for,  after  the  expiration  of  which 
year  they  shall  be  barred  from  the  collection  of  any  taxes  :  Pro- 
vided always,  that  nothing  in  this  section  contained  shall  be  con- 
strued to  alter  the  law,  directing  the  manner  and  time  of  the  sher- 
iffs' accounting  with  the  comptroller  and  treasurer. 

Sheriffs  to  col-       45.   It   shall   be  the   duty  of  the   sheriffs  to  collect  the  pubhc 
tax  ^■om'those  taxes,  from  each  and  every  individual  in  their  counties  respectively, 
who  neglected   ^yho  are  hablc  to   pay  taxes,  whether  their  names  be  contained  in 
listl^.^^  ^^         the   list   of  taxables,  delivered  by  the  clerks   or  not ;  and  in  all 
cases  where  the  pubhc  taxes   shall  be  demanded   of  any   person, 
whose  name  and  taxable  property  are  not  contained  in  the  list  fur- 
nished by  the  clerk,  the  sheriff  shall   demand  and   receive,  from 
each  and  every  such   person,  a  sura   equal  to   double  the  amount, 
which  he  would  have  been  liable  to  pay  in  case  a  hst  of  his  taxa- 


emploj^ed  to 
collect  taxes 
must  take  an 
oath. 


Sheriffs  by 
themselves  or 


or  m  case  or 
their  deaths, 
their  sureties 
to  collect  the 
taxes. 


Sheriffs  and 
their  sureties 
to  have  one 
year  to  collect 
arrears. 


43.  1811,  c.  813. 

43.  1791,  c.  334,  s.  1.— 1784,  c.  219,  s. 

44.  1300,  c.  547,  s.  1  and  2. 
4.5.  1791,  c.  334,  s.  2. 


Chap.  CIL]  revenue.  523 

ble  property  had  been  given  in  due  time  and  according  to  law,  and 
in  instances  where  disputes  shall  arise,  as  to  the  amount  of  the  tax, 
for  which  any  person  may  be  liable  under  this  section,  the  papers  such  tax,  how 
and  records  in  the  clerk's  office  shall  be  held  and  deemed  sufficient  to.be  ascer- 
authority,  on  the  part  of  the  sheriff,  to  entitle  them  to  enforce  their 
demands  by  distraining  or  otherwise,  in  case  the  party  hath,  at  any 
time  within  two  years  then  last  past,  given  a  list  of  his  or  her  taxa- 
ble property,  but  in  cases  where  no  such  lists  have  been  given  in, 
an  estimation  in  writing,  under  the  hands  and  seals  of  one  justice 
of  the  peace  and  three  freeholders,  convened  for  that  purpose  by 
the  sheriff,  shall  authorize  and  warrant  his  demand  to  the  amount 
of  such  estimation,  saving  nevertheless  a  right  of  appeal  from  the 
determination  of  such  justice  of  the  peace  and  freeholders  to  the 
next  county  court,  where  the  matter  shall  be  tried  and  fully  deter- 
mined on  in  a  summary  way  during  the  same  term. 

46.  It  shall  be  the  duty  of  each  and  every  sheriff,  immediately  Sheriffs  to 
on  receiving  the   list   of  taxable   property  from   the   clerk  of  his  |dTerti*semen^ 
county,  to  set  up  at  the  court  house   an  advertisement,  informing  when  they  have 
the  inhabitants  of  his   county  that  he  has  received   such  list,  andifJts^^^   ^  ""^ 
holds  it  ready  for  inspection,  and  requesting  them  to  give  him  any 
information  of  any  land,   polls,   or  other  taxable  property  in  said 

county,  not  given  in,  and  any  sheriff,  receiving  information  of  any  Penalty  on 
lands,  polls  or  other  taxable  property  not  given  in,   and  neglecting  sheyiff^  for 
or  refusing  to  collect   and  account  for  the   same,  shall  forfeit  and  lect  taxes  on 
pay  twelve  hundred   dollars,  to  be   recovered,  one  half  to  the  use  Pfoperty  not 
of  the  State  and  the  other  half  to  the  use  of  the   person  suing  for  " 
the  same  :   Provided^  that  one  thousand  dollars  of  this  fine  shall  not 
be  inflicted,  in  any  case  where  the  sheriff  shall  account  with  the 
treasurer,  within  six  months  from  the  expiration  of  the  time  allow- 
ed by  law  for  his  settling  with  the  treasurer. 

47.  Each  and  every  sheriff,  or,  in   case  of  his  death,  his  sure- ^jl^^j^^^^.^^^^ 
ties,  shall  have  the  same  power  to  enforce  the  collection  of  taxes  may  distrain 
by  distress  and  sale  or  otherwise,  during  the  additional  year,  which  ^hc  additbna"^ 
is  allowed  him  to   finish  the   collection  of  the   pubhc  taxes,  as  he  year. 
could  or  might  have  had   and  used,  when  the  said   taxes  became 

due. 

48.  Any  person  failing  to  pay,  by  himself  or  through  others,  the  dis'toin^d^and 
public  taxes  to  which  he  may  be  liable,  in  due  time  and  according  sold  when 

to  law,  and  having  no  visible  personal  property  on  which  the  sheriffg^^^|'^^j."°  P^^' 

can  distrain,  but  being  possessed  of  lands  within  the  county  where 

such  taxes  become  due  and  payable,  it  shall  and  may  be  lawful  for 

the  sheriff  of  such  county  and  he  is  hereby  required  to  distrain  on 

such  lands,  and  to  sell  the  same,  or  so  much  thereof  as  shall  be 

sufficient  for  the  payment  of  the  taxes  due  and  the  costs  of  such 

sale. 

49.  Whenever  the  sheriff  of  any  county  shall  have  reason  to  .'^"^^^™  f  P*^""*"^ 
suspect  that  any  person,  whose  name  is  or  should  be  on  the  list  oi  move,  sheriff 
taxable  property  returned  by  the  justices,  is  about  to  remove  him-  ^ay  proceed 

46.  1796,  c.  449,  s.  4. 

47.  1792,  c.  376. 

48.  1792,  c.  360,  s.  5. 
40.  1801,  C.  570,  s.  3. 


524  REVENUE.  [Chap.  CII. 

forthwith  to      self  or  property  out  of  the  county,  the  sheriff  shall  have  power 
duJfrom^Mm.  ^^  proceed  to  levy  and   collect  the  tax  due  from  such  person, 
immediately,  before  the  time  appointed  for  commencing  the  collec- 
tion of  the  taxes  :  Provided,  such  sheriff  shall  first  make  oath,  be- 
fore some  justice  of  his  county,  that  he  has  just  reason  to  beheve, 
that  such  person  is  about  to  remove  himself  or  property  out  of  the 
county,  before  the  time  of  the  payment  of  his  taxes  shall  arrive, 
and  obtain  a  certificate  from  such  justice  to  that  effect. 
Sheriff  to  give       50.  Whenever  any  sheriff  shall  distrain  any  article  of  personal 
by^advertise-'^'^  property  for  the  payment  of  taxes,  he  shall  not  sell  the  same,  until 
ment  before  he  ten  days'  previous  notice  of  such  sale,  and  of  the  amount  of  taxes 
propeny^for^     due,  shall  have  been  given,  by  advertisement  at  three  or  more  of 
taxes.  i\iQ  most  public  places  in  the  district  where  said  taxes  are  due. 

Sheriff  toad-        51.   It  shall  not  be  lawful  for  any  of  the  sheriffs  in  this    State, 
newsmperTiT^  either  by  themselves  or  their  deputies,  to  sell  lands  for  their  taxes, 
Raleigh,  and    until  the  same  have  been  first  advertised  for  sale  in  the  State  Gazette, 
court\ouse  of  ^v  some  Other  newspaper  published  in  the  city  of  Raleigh,  for  the 
his  county,  be-  space  of  one   month,   and  also  at  the  court  house  of  the  county 
land  for  taxes,  where  they  are  situated  ;  the  whole  of  the  expense  attendant  on 
which  shall  be  chargeable  on  such  lands,  and  shall  be  made  accor- 
dingly ;  in  which  advertisements  shall  be  mentioned  the  situation 
of  the  lands,  the   streams  near  which   or   on   which  they  lie,  the 
estimated  quantity,  the  names  of  the  tenant  or  tenants  in  possession 
if  cultivated,  and  the  names  of  the  reputed  owners  where  the  same 
can  be  ascertained  :   Provided,  that  no  sale  of  lands  for  taxes  shall 
take  place  previous  to  the  first  day  of  August  in  each  year. 
Sheriff  to  re-         52.   The  sheriff  of  every  county  shall,  at  the  term  of  the  court 
county  court  a  of  pleas  and  quarter  sessions  of  his  county,  next  preceding  the  day 
list  of  the        he  shall  fix  for  the  sale  of  any  lands  for  taxes,  in  open  court  return 
to^be\old '^'^     a  list  of  the  tracts  of  land  upon  which  the  taxes  are  unpaid,  and 
which  list  shall  which  he  proposes   to   sell  for  the  taxes,  therein  mentioning  the 
^^  ecor  e  ,      Qwuers  of  eacli  tract,  and,  if  the  owner  be  unknown,  the  name  of 
the  last  known  or  reputed  owner  shall  be  mentioned,  the  situation 
of  said  lands,  and  the  amount  of  tax  thereon  due,  which  said  list 
shall  be  read  aloud  in  open  court,  recorded  by  the  clerk  upon  the 
minutes  of  the  court,  and  a  copy  thereof  shall  be  put  up  by  the 
said  clerk  during  the  said  term  in  the  court  room. 
To  return  a  list      53.   It  shall  be  the  duty  of  the  sheriff,  at  the  term  of  the  court 
"^j'^^.u^'^'^®      of  pleas  and  quarter  sessions  of  his  county,  next  after  any  sale  of 

sold  tuG  n3in6  ^  '  j 

of  the  pur-  lands  by  him  made  for  taxes,  to  return  to  said  court  a  list  of  the 
*^*iv^M"^t*^  h  n^'^^cts  of  land  by  him  sold  for  taxes,  the  quantity  thereof  so  laid  off 
be  recorded,  for  the  tax,  the  name  of  the  purchaser,  and  the  sum  due  or  paid  to 
u"'^in  tli^^^^^  said  sheriff  by  said  purchaser  for  tax  and  charges,  which  list  shall 
house.  be  read  aloud  by  the  clerk  in  open  court,  shall  be  recorded  in  the 

minutes  of  the   court,  and  a  copy  thereof  shall  be  put  up  by  the 

clerk  during  the  said  term  in  the  court  room. 

50.  1784,  c.  219,  s.  3. 

51.  1796,  c.  449,  s.  1. 

52.  1819,  C.  in06,  s.  1. 

53.  1819,  C.  1006,  S.  2. 


Chap.  OIL]  revenue.  525 

54.  Every  sheriff  or  clerk,  who  shall  omit  to  perform  the  sev-  Penalty  on 
eral  duties  enjoined  in  the  two  preceding  sections,  shall  forfeit  and  cie7ks  foTfail- 
pay  the  sum  of  one  hundred  dollars,  to  be  recovered  by  any  person  ing  to  porform 
suing  for  the  same  in  an  action  of  debt,  and  shall  be  liable  in  an  Lued  hrthe' 
action  on  the  case  for  such  further  damages,  as  may  be  sustained  by  two  preceding 
the  owner  of  the  lands,  in  consequence  of  such  irregular  sale.  sections. 

55.  When  any  lands  shall,  by  the  above  provisions,  become  lia-  sheriff  to  sell 
ble  to  be  sold  for  the  taxes  of  the  same,  it  shall  be  the  duty  of  the  the  land  at 
sheriff  to  set  up  the  whole  of  the  lands,  belonging  to  any  one  per- him  who  will 
son  or  company,  for  which  the  taxes  thereon  shall  be  due,  to  be  P^Y  ^i^*^  *^ps 

Eincl  costs  lor 

sold  to  the  person,  who  will  pay  the  amount  of  the  public,  county  the  smallest 
and  poor  taxes,  with  all  the  charges  for  advertising  the  same  agree-  P*^""^- 
ably  to  law,  for  the  smallest  part  thereof,  and  he  shall  strike  off 
the  quantity,  so  bid  or  offered  to  be  taken  for  the  amount  of  the 
taxes  and  charges  aforesaid,  to  the  person  offering  to  take  the 
smallest  number  of  acres  of  the  land  for  the  taxes  and  charges  as 
before  mentioned. 

56.  The  person  purchasing  land   at  any  sheriff's   sale  for  the  J'^®,  P^^"'^¥?^'^ 
taxes,  as  above  provided,  shall  be  at  liberty  to  make  choice  of  the  part  in  a  com- 
quantiiy  of  land,  so  struck  off  to  him,  out  of  any  part  of  the  land  P'^*^'^  ^°^^- 
offered  for  sale,  to  be  laid  off  in  one  compact  body,  as  nearly  in  a 

square  as  can  be,  and  adjoining  to   some  of  the   outlines  of  such 
tracts  or  parcels  of  land. 

57.  Where  land  may  be  sold  by  any  sheriff  in  this  State  for  non-  Persons  whose 

^  ,     •'    ,  ,•'.•'  „    ,  ,  lands  are  sold, 

payment  of  taxes,  due  thereon,  by  virtue  oi  law,  the  person  or  may  redeem 
persons,  their  heirs,  executors  and  administrators,  owning  such '^ithi"^^^^^^ 
lands,  shall  be  permitted  to  redeem  the  same  from  the  pur- 
chaser, at  any  time  within  twelve  months  after  such  sale  is  made, 
by  paying  or  tendering  in  payment  to  the  purchaser  or  to  the  clerk 
of  the  court,  where  the  list  of  the  sales  shall  be  recorded  accord- 
ing to  the  fiftythird  section  of  this  act,  the  full  amount,  which  such 
purchaser  gave  to  such  sheriff,  and  twentyfive  per  cent,  on  the 
purchase  money  and  all  costs  of  sale  accruing  thereon. 

58.  W^hen  any  person   shall  purchase   land  sold   for   taxes,  he  Purchaser  to 
shall,  if  it  is  not   redeemed  within   the  time  mentioned  in   the  lastl^,^J,L^lj^t?,'^ 
section,  procure  the  same  to  be  surveyed  by  the  county  surveyor,  the  sheriff  to 
within  six  months  after   the  time  for  redemption  has   expired,  and  ^^^'^"^^ '^ 
present  to  the  sheriff  a  fair  plat  of  such  survey,  with  the  courses 

and  distances  fairly  set  forth,  and  certified  under  the  hand  of  said 
county  surveyor,  which  survey  shall  be  made  at  the  expense  of 
such  purchaser,  and  the  sheriff  shall  execute  and  deliver  to  him  a 
deed  for  the  same. 

59.  It  shall  be  the  duty  of  the  county  surveyor  to  survey  lands  Penalty  on  the 

T  T   r  -ii-ii  •  ■         r  r        county  survey-. 

sold  lor  taxes,  as  prescibed  in  the   last  section,  upon   pain  of  lor- or  for  refusing, 
feiting  fifty  dollars  ;  and,  if  he   shall  fail  so  to    do   within   the  six '^  ^{"'^f^'^'^S' 
months,  the  purchaser  of  said  lands  shall  be  allowed  a  further  time  of  make  the  sur- 
six  months  to  have  sard  lands  surveyed  by  some  other  surveyor,  a'"^y- 

54.  1828,  c  42. 

55.  1798,  c.  492,  s.  1. 

56.  1798,  c.  492,  s.  2. 

57.  1805,  c.  676  — 1S19,  c.  1006,  s.  3. 

58.  179S,  C.  492,  s.  3.-1806,  C.  760. 

59.  1S08,  c.  760. 


526  REVENUE.  [Chap.  CII. 

plat  of  whose  survey  being  returned  to  the  sheriff  for  the  time  being, 
he  shall  proceed  to  execute  title,  as   if  the   said  survey  had  been 
made  by  the  county  surveyor,  and  his  deed  shall  be  good  and  val- 
id to  all  intents  and   purposes,  as  if  it   had   been  made  under  the 
provisions  of  the  last  section.      Provided  nevertheless,   that    the 
county  surveyor  shall  not  be  liable  to  the  penalty  aforesaid,  unless 
the  purchaser  apply  to  him  to  survey  such  lands,  within  two  months 
after  he  is  at  liberty  to  have  the  survey  made. 
When  the  land      60.   If  no  person  shall  bid  a  smaller  quantity  than  the  whole  of 
off^to^tirffov^  the  lands,  then  the  whole  of  the  said  lands  so  set  up  shall  be  con- 
ernorfor  sidered  as  a  bid  for  the  governor,  and  the  sheriff  shall  strike  off  the 

state^^  same  to  him  accordingly,  and  execute  a  good  and  sufficient  deed 

of  conveyance  to  him  and  his  successors  in  office,  in  manner  here- 
inafter directed,  for  the  use  of  the  State. 
^nh*h*^^ff^*      61.   It  shall  be  the  duty   of  the  several  sheriffs  respectively,  to 
to  the  governor  perfect  the  said   deed  or   deeds  to  the  governor,  by  signing,   ac- 
f^^/V^^^^"^"      knowledging  and  delivery  thereof,  in  the  presence  of  the  next  en- 
suing county  court  for  the   county,  where  the   said  land  shall  be, 
and  the  clerk  shall  accordingly  register  the  same,  in  a  book  to  be 
kept  by  him  for  that  purpose,  which  registration  shall  be  deemed 
valid  ;  and  it  shall  be  the  further  duty  of  the  clerk,   after  having 
recorded  the  deed  as   aforesaid,  to  certify  the  same  thereon,  and 
deliver  the  same  to  the  sheriff  (who  shall  call  on  him  for  the  same,) 
within  twenty  days  after  the  rising  of  the  court,  at  which  such  deed 
shall  have  been  acknowledged,  and  the   said  clerk,  neglecting  to 
Penalty  on  the  perform  and  deliver  the  same  to  the   sheriff  as  aforesaid,  shall  be 
ureof  dutyin   liable  to  a  penalty  of  one  thousand  dollars,  to  be  recovered  against 
this  particular.  1^}^  by  the  attorney  general  or  one  of  the  solicitors  for  the  State, 
for  the  use  of  the  State,  in   any  court  having  cognizance  thereof, 
by  motion,  first  giving  to  the   said  clerk  ten  days'  previous  notice 
of  such  motion. 
Sheriff  to  de-         62.   It  shall  be  the  duty  of  every  such  sheriff,  before  he  settles 
deed  in  Ae       ^^^  account  with  the  comptroller,  to  deposit  such  deed  or  deeds  in 
secretary's  of-   the  office  of  the  secretary  of  state,  who  shall  record  and  keep  the 
same  in  his  office  for  the  benefit  of  the  State  ;  and  the  said  lands 
Lands  so  bid     ^*-'  Conveyed  shall  be  deemed  vacant  lands  and  liable  to  entry  ac- 
ofF,  to  be  deem-  cordingly  :  and  the  secretary  of  state  shall  grant  a  certificate  to 
ed  vacant.        g^^^|^  sheriff,  setting  forth  the  quantity  of  land  so  conveyed  to  the 
governor,  which  certificate  shall  be  returned  by  such  sheriff  to  the 
comptroller  ;  and  such  sheriff,  in  addition  to  the   oaths  taken   on 
Sheriff's  oath    his  settlement  with  the  comptroller  as  hereinafter  provided  for, 
^uch  landr^  ^°  shall  also  swear  that  he  has  conveyed  to  the  governor,  in  conformity 
to  the  requisition  of  this  act,  all  lands  by  him   sold  for  the   taxes 
thereof,  and  purchased  as  aforesaid  for  the  use  of  the  State  ;  and 
if  any  sheriff  shall  fail  or  refuse  so  to  do,  the  comptroller  shall,  in 
his  report  to  the  treasurer,   charge  such  sheriff,   so  faihng   or  re- 
fusing, with  the  sum  of  two   thousand  dollars,   and  the  treasurer 
shall  recover  the  same  for  the  use  of  the  State. 

60.  179S,C.  492,  S.  4. 

61.  1703,  c.  492.  s.  5. 

6-2.    179S,  c.  492,  s.  6.     ,  '  ■ 


Chap.  CIL]  revenue.  527 

63.  Each  respective  sheriff  shall  be  allowed  in  his   settlement  Sheriffs  to  be 
with  the  comptroller,  (the  requisites  of  the  three  last  sections  being  ^axeronland^^ 
complied  with,)  the  amount  of  the  tax  on  all  lands,  so  purchased  bid  off  for  the 
for  the  use  of  the  State,  together  with  the  costs  of  advertising  and^"^*^™""^" 
recording,,  and  also  shall  be  allowed  commissions  on  the  same,  as 

if  the  money  had  actually  been  collected,  and  such  sheriff  shall 
also  be  credited,  in  his  settlement  with  the  county  treasurer  or 
trustee,  and  with  the  wardens  of  the  poor,  for  such  of  the  county 
and  poor  tax,  as  the  said  lands  may  be  sold  to  satisfy. 

64.  Any  person,  purchasing  lands  sold  for  the  taxes  due  thereon,  Persons  pur- 
shall  be  considered  as  taking  and  holding  the  same,  subject  to  the  ^^fl  ^f  J^^es 
taxes  accruing  and  growing  due  thereon,  from  the  first  day  of  April  liable  for  ac- ' 
next  preceding  the  time' of  his  purchase  :   but  if  such  person  shall  "jj"j|  J^^.^^" 
fail  to  complete  and  perfect  his  title  to  said  lands,  according  to  the  vert  to  the 
above  provisions,   such  lands  shall  be  deemed  lapsed   or  vacant  ^^^^^"P."?^ 
lands   and  to  have  reverted  to  the   State,  and  liable  to  be  entered  failing  to  com- 
in  the  entry  taker's  office,  as  if  the  same  had  never  been  appropri- '^  ^" 

ated. 

65.  Where  any  sheriff  shall  sell  any  lands   for   the  taxes  due  where  a  sheriff 
thereon,  and  die,  or  remove,  or  be  out  of  office,  before  a  deed  or  put^'of'^olace, 
deeds  have  been  executed  for   the  same,  it  shall  be  lawful  for  his  his  successor 
successors  in  office,  to  make  and  execute  a  deed  or  deeds  to  the  deed  for  lands 
person  or  persons  purchasing  the  same,  if  it  shall   appear  that   the  ^^oW  for  taxes, 
sale  was  bona  fide  made  ;  Provided  always^  that  before  any  deed  What  to  be 

or  deeds  shall  be  executed  by  the  sheriff  to  the  person  or  persons,  chaser'^efore 
so  claiming  as  purchasers  of  the  land  aforesaid,  such  purchaser  or  obtaining  such 
purchasers  shall  produce  to  the  court  of  the  county,  in  which  such    '^^  ' 
lands  lie,  the  receipt  of  the  deceased  sheriff  for  the  purchase  money, 
and  shall  also  produce  such  other  testimony,  to  shew  that  they  had 
well  and  truly  purchased  and  paid  for  the  said  lands,  as  may  by 
the  said  court  be  deemed  satisfactory,  and  shall  also  make  it  appear 
that  they  have   surveyed  the  same,  and  registered  a  plat  thereof 
agreeably  to  law,  and  also  that  they  have  paid  the  lawful  taxes  on 
said  lands  ;  on  which  proof  the   said  court  may  issue  an   order, 
directing  the  sheriff  to  make  and  execute  titles  for   the  same,  and 
all  deeds,  made  and  executed  contrary  to   the   provisions  of  this 
section,  shall  be  void. 

66.  All  sheriffs  and  receivers  of  public  moneys  shall  settle  their  Sheriffs  to  set- 
public  accounts,  or  cause  them  to  be  settled,  with  the  comptroller  ^^giJ^f^Jj^™^' 
of  this  State  ;  the  whole  of  which  settlements,  except  those  which 

now  are  or  hereafter  may  be  excepted  by  law,  shall  be  made  in 
the  months  of  July,  August  and  September  in  each  and  every  year, 
and  it  shall  be  the  duty  of  the  comptroller,  on  making  any  such 
settlement,  forthwith  to  report  the  sums  or  amount,  due  from  such 
accountant,  to  the  treasurer  of  the  State,  setting  forth  in  such  re- 
port (if  a  sheriff's  account,)  the  net  amount  of  each  species  of 
public  tax,  and  the  treasurer  shall  raise  an  account  against  each  and 
every  of  such  persons,  and  debit  them  accordingly. 

63.  179S,  c.  492,  s.  7. 

64.  179S,  c.  492,  s.  8.— 1800,  c.  549. 

65.  1801,  C.577. 
06.  1827.  c,  I,  s.  7. 


528  REVENUE.  [Chap.  CII. 

Sheriffs,  in  their  67.  It  shall  be  the  especial  duty  of  the  several  sheriffs  of  this 
desieM,te\1le^°  Stale,  ill  making  settlements  of  their  accounts  annually  with  the 
different  comptroller,  to  designate,  in  a  list   by  them  to   be   rendered,  the 

taxes?*  °  ^  ^  different  sources  from  which  the  taxes,  by  them  accounted  for, 
Comptroller  to  Were  received,  and  the  particular  amount  of  tax  from  each.  And 
give  the  sher-  i\^q  comptroller  shall  give  the  sheriffs  a  certified  copy  of  the  lists 
copies  of  the  returned  by  them  respectively,  which  said  copy,  it  shall  be  the  duty 
returns,  to  be    of  the  Said  sheriffs  to  deposit  with  the  clerks  of  their  respective 

deposited  with  .        ^  ,  ,.      .  ^    .  ■*■ 

the  clerks.        counties  lor  public  mspection. 

Sheriffs  to  re-        68.   Every  sheriff  shall  return  upon  oath  to  the  court  of  pleas 

turn  upon  oath    ^^  quarter  sessions  of  his  county,  at  the  term  next  precedine;  the 

to  the  county        .        t.  ,  .    ,     ,         ,     i,  ,  •  i  "^  ,  n        r  i  t 

court  a  list  of    time  at  which  he  shall  settle  with  the  comptroller  tor  pubuc  taxes, 
alUaxes  re-      ^  jjgj.  ^^  j^jj  ^^iq  moneys  which  he   may   have  received  from  taxes 
merchants,  &c.  imposed  on  merchants,  retailers  of  spirituous  liquors,  stage  play- 
ers, sleight  of  hand  performers,  rope  dancers,  tumblers,  wire  danc- 
ers, company  of  circus   riders,  equestrian  performers,  and  all  ex- 
hibitors of  natural  or  artificial  curiosities,  setting  forth  in  such  hst 
the  name   of  each   person  who  may  have   paid   any  such  tax,  the 
amount  paid  by  each,  and  for  what  tax  ;  which  list  the  court  shall 
„   ,     ,       ^  cause  to  be  pubhcly  read   in  open  court  ;  and  it  shall  be  the  duty 

Such  returns  io  r  J  f  '  .  ,-        •  ,  "^ 

be  recorded  and  01  the  clerk  01  the  court  to  enter  upon   the   minutes  of   said  court 
published  by     g^^^j  preserve   such  return,  and  to   cause  to  be  set  up,    in    some 
conspicuous  place  in  the  court  house,  a  fair  copy  thereof,  at  each 
and  every  court  which  may  be  held  in  his  county  within  six  months 
thereafter,   and   to   furnish   each  grand  jury  with  a   copy  of  the 
same. 
If  such  return        69.   If  the  term  of  the  county  court  in  any  county  shall  happen, 
tocourt.k^^Bay  before  the  sheriff  can  complete  the  collection  of  the  taxes   men- 
be  returned  and  tioned  in    the  above  section,  or   from   any  other  cause  the  sheriff 
cierkTnvaca-    shall  have  failed  to  make   his  return  to  the  court  aforementioned, 
tion.  then  the  said  list  of  taxes  may  be  returned  and  filed  with  the  clerk 

of  said  court  during  vacation,  which  list  shall  be  sworn  to,  in  the 
presence  of  the  clerk,  before  two  justices  of  the  peace,  by  the 
sheriff  returning  the  same. 
The  clerk  shall      70.   The  clerk  shall   deliver  to  the  sheriff  a  certified  copy  of 
sheriff  a  copy    such  return,  which  copy  the  sheriff  shall  deliver  to  the  comptroller 
of  such  return,  at  the  time  of  settling  for  public   taxes,  and   the  comptroller  shall 
livered^to^'the*'  charge  the  sheriff  according  to  such  return  :   Provided,  that  nothing 
comptroller.      herein  contained  shall  be  so   construed  as   to   exempt   any  sheriff 
from  liability  for  any  moneys  which  he  may  have  received  on  ac- 
count of  such  taxes,  whether   contained   in  such    return  or  not  : 
Provisos.  And  provided  further,  that  nothing  herein  contained,  shall  be  so 

construed  as  to  affect  in  any  nianner   the  provisions  regulating  the 
issuing  of  licenses,  and  accounting  for  them. 
Penalty  on  7 1 .   If  any  sheriff  fail  to  make  the  returns  to  the  court,  or  to  the 

ing'^to  make  re- clerk   in  vacation,  or  shall  fail   to    deliver   a   copy  thereof  to  the 
turns  to  court    comptroller,  as  above  required,  he  shall  forfeit  and  pay  the  sum  of 

67.  1822,  c.  1129,  s-  15. 

68.  1831,  c.  1,  s.  1. 

69.  1832,  c.  11. 

70.  1831,  c  1,  s.  2. 
71-  1831,  c.  1,  s.  3. 


Chap.  CII.]  revenue.  529 

two  hundred  dollars,  and  the  comptroller  shall  charge  him  with 
the  same  in  stating  his  account  with  the  State,  and  the  sheriff  shall 
be  moreover  liable  to  pay  the  taxes,  which  he  has,  or  ought  to 
have  collected. 

72.  It  shall  be  the  duty  of  the  comptroller,  when  he  shall  have  D"*y  "f  [he 
just  cause  to  suspect  that  any  sheriff  may  have  made  a  false  retm-n,  when  he  sus- 
or  sworn  falsely  in  any  matter  relative  to  the  collecting  or  account- P5.'=^!.^"y,  ?h<^'^- 

r  •'•'.,  ,  ^  in  of  makinff 

mg  lor  any  tax,  to  communicate  the   same  to  the  ofncer  prosecu-  any  false  re- 
ting  in  the  superior  court  of  the  county,  wherein  the  offence  may  f"^"  °'' s^*^^r- 
have  been  committed,  and  it  shall  be  the  duty  of  such  officer  to    ° 
prosecute  such  sheriff,  if  in  his  opinion  the  circumstances  of  the 
case  shall  justify  a  suspicion  of  such  sheriff's  guilt  ;  and  in  all  such 
prosecutions,  a  copy   of  any  list  returned   on  oath,   filed  in   the 
comptroller's  office,  duly  certified  by  the  comptroller,  shall  be  ad- 
mitted as  evidence  in  the  same  manner,   and  have  the  same  effect 
as  the  original,  unless  the  court,  for  special  reasons,  shall  previous- 
ly order  the  original  to  be  produced  on  trial. 

73.  If  any  clerk   shall  fail  to  perform   the   duties  required    of  Clerks,  for  re- 
him  by  the  sixtyeighth  section  of  this   act,  or  shall  neglect  or  re- cord  or  to'^certi- 
fuse  to  certify  any  return  made  to  him,   as   required  by  the  seven-fy  returns,  &c. 
tieth    section,   or   shall  falsely    certify   any  return   duly  made    to  to  indictment 
him,  he  shall  be  deemed  and  taken  to  be  guilty  of  a  misdemeanor  for  a  misde- 
in  office,  and  shall,   on  conviction   in   any  court  having  cognizance  fice. 
thereof,  for  any  or  either  of  the  aforesaid  offences,  be  punished  by 

fine  or   imprisonment  or  removal  from  office,  at  the  discretion  of 
the  court. 

74.  All  sherifi^s  shall,  at  the  time  of  their  annual   settlements,  Sheriffs  to 
render  unto  the  comptroller,  on  oath,  a  list  of  the  names  of  those p^gQ^J^^/^^ 
persons  from  whom  they  have  recovered   a  twofold  tax,  together  paid  a  double 
with  the  amount,  specifying  from  what  source  each  species  of  tax  ^^^' 
arose. 

75.  Each  and  every  sheriff  shall,  in  his  annual  settlement  with  Sheriffs  to  be 
the  comptroller,  be  allowed  for  insolvent  taxables  ;  but  in  order  to  solvent  tax- 
obtain  such  allowance,  he  must  return  to  the  court  of  pleas  and  abies. 

/.  ,  .  T        1  •  1       How  to  obtain 

quarter  sessions  oi  his  county,  at  some  term  preceding  rus  settle- such  allowance. 
meiit  with  the  comptroller,  a  list  containing  the  names  of  those  for 
whom  he  claims  as  insolvent,  and  he  must  make  oath  that  he  hath 
been  at  the  dwelling  house  or  usual  place  of  residence  of  the  per- 
son or  persons  therein  named,  and  that  he  could  not  find  property 
of  such  person  or  persons,  sufficient  to  discharge  the  respective 
taxes  or  any  part  thereof,  and  that  the  persons  contained  in  such 
list  were  insolvents,  at  the  time  when  he  ought  by  law  to  have  ac- 
counted for  such  collection,  and  the  said  court  shall  not  be  at  lib- 
erty to  allow  such  sheriff  for  more  insolvent  taxables  than  he  shall 
have  thus  expressly  named  and  sworn  to. 

76.  Such  list  of  insolvent  taxables  shall  be  advertised  by  the  List  of  insol- 
clerk  in  the  court  house,  within  ten  days  after  its  return,  and  any  yg^jsg^  jjy  ^j^g 


clerk. 


72.  1831,  c.  1,  s.  5. 

73.  1831,  c.  1,  s.  4. 

74.  1791,  c.  334,  s.  4. 

75.  1774,  c.  105,  s.  2.— 1786,  c.  255,  S.  2.— 1793,  c.  385. 

76.  1774,  c.  105,  s.  2.— 1786,  c.  255,  s.  2. 

VOL.  I.  67 


530 


REVENUE. 


[Chap.  CH. 


Penalties  on 
sheriffs  for  cer- 
tain violations 
of  duly  in  re- 
lation to  insol- 
vents. 


Sheriff's  oath 
on  settling  his 
accounts  with 
the  comptrol- 
ler. 


Oath  as  to  the 
collection  of 
delinquent 
taxes. 

Penalty  for  col- 
lecting and  not 
accounting  for 
delinquent 
taxes. 


Sheriffs  com- 
mission for 
collecting 
taxes. 


His  pay  for 
time  and  ex- 
penses in 
making  his 
settlement. 


clerk,  neglecting  or  refusing  to  perform  the  duty  hereby  required, 
shall  for  every  such  neglect  or  refusal  forfeit  and  pay  one  hundred 
dollars,  one  half  to  the  wardens  of  the  poor,  the  other  half  to  the 
person  suing  for  the  same. 

77.  If  any  sheriff  shall  return  to  court,  as  insolvent,  the  name 
of  any  person,  who  is  not  enhsted  or  has  actually  paid  his  tax  for 
that  year,  or  shall  presume  to  collect  or  receive,  by  himself  or 
deputy,  from  any  person  his  tax  for  the  year  for  which  he  has  been 
returned  an  insolvent,  without  accounting  for  the  same,  such  sheriff 
shall  forfeit  and  pay  for  every  offence  the  sum  of  forty  dollars,  to 
be  recovered  as  directed  in  the  last  section,  and  apphed  one  half 
to  the  use  of  the  county  where  the  offence  shall  be  committed,  the 
other  half  to  the  party  injured  who  may  sue  for  the  same. 

78.  Each  and  every  sheriff,  previous  to  settling  his  accounts, 
shall  take  and  subscribe  the  following  oath  in  the  comptroller's  of- 
fice :  "  I,  A.  B.,  sheriff  of  the  county  of  ,  do  on  this  day 
of  ,  one  thousand  eight  hundred  and  ,  make  oath  that  the 
list,  now  by  me  given  in,  is  to  the  best  of  my  knowledge  and  be- 
lief complete,  j^erfect  and  entire,  and  contains  the  full  amount  of 
all  moneys  by  me  or  for  me  received,  or  which  ought  to  have  been 
received,  on  account  of  the  public  taxes  for  the  year  one  thousand 
eight  hundred  and  ,  and  that  I  have  truly  and  faithfully  endea- 
vored to  execute  and  govern  myself  by  the  revenue  laws  of  this 
State,  without  favor,  affection  or  partiality,  to  the  best  of  my 
knowledge  and  ability  :  so  help  me  God." 

79.  In  addition  to  the  foregoing  oath,  said  sheriff  shall  swear, 
that  if  he  collects  any  delinquent  tax  beyond  those  accounted  for 
in  said  settlement,  he  will  render  a  true  account  thereof  to  the 
comptroller  within  one  year  after  such  collection.  And  if  it  shall 
be  discovered  that  any  sheriff,  or  any  person  by  virtue  of  having 
been  a  sheriff,  sliall  collect  delinquent  taxes  and  not  account  for 
the  same  as  herein  required,  such  sheriff  or  other  person  shall  be 
liable  to  pay  fourfold  the  amount  of  the  sum  collected  and  not  ac- 
counted for,  to  be  recovered  in  the  name  of  the  State  before  any 
jurisdiction  having  cognizance  thereof. 

SO.  Each  and  every  sheriff,  as  a  compensation  for  his  services 
in  collecting  and  paying  into  the  treasury,  in  due  time  and  accord- 
ing to  law,  the  public  taxes,  shall  be  entitled  to  a  commission  of 
six  per  centum  on  the  net  amount  of  the  taxes  of  his  county,  to  be 
allowed  him,  by  way  of  deduction,  in  the  settlement  of  his  accounts 
with  the  comptroller. 

81.  Each  and  every  sheriff  shall  also  be  allowed  the  sum  of 
three  dollars  for  every  day  he  may  be  necessarily  engaged  in 
making  his  settlement  with  the  treasurer,  and  shall  also  be  allowed 
the  sum  of  one  dollar  and  fifty  cents  for  every  thirty  miles  of  the 
estimated  distance  of  going  and  returning  home,  by  the  most  usual 
road,  from  his  place  of  residence  to  the  seat  of  government,  to  be 


77.  1774,  C.  105,  s.  3. 

78.  1791,  c.  33-4,  s.  6. 

79.  1822,  c.  1129,  s.  13. 

80.  1791,  c.  334,  s.  1. 

81.  1827,  c.  1,  s.  24- 


Chap.  CII.]  revenue.  531 

paid  by  the  treasurer  ;  and  if  any  sheriff  shall  fail  to  pay  the 
whole  amount  of  the  taxes,  due  from  him  to  the  State  at  the  time 
he  makes  such  settlement,  he  shall  not  be  entitled  to  any  mileage 
nor  to  the  three  dollars  a  day  allowed  for  his  attendance  in  making 
the  settlement. 

82.  Over  and  above  the  other  bonds,  directed  by  law  to  be  giv-  Bond  to  be 
en  by  the  sheriff  of  each  county  before  his  entering  into  office,  he  ^fg'for  the  cd'- 
shall  enter  into  a  distinct  bond  with  two  or  more  sufficient  sureties  lection  of  the 
to  be  approved  of  by  the  county   court,  payable  to   the    State   of  ^"  ^^  ^^^^' 
North  Carolina,  in  the  sum  of  four  thousand  dollars,  conditioned 

for  the  due  collection,  payment  and  settlement  of  the  public  taxes 
as  required  by  law. 

83.  It  shall  be  the  duty  of  the  clerks  of  the  county  courts,  at  Clerks  to  fur- 
the  same  time  when  they  make  a  return  of  the  lists  of  the  taxable  troHer  with  tS'e 
property  to  the  comptroller,  to  furnish  the  comptroller  with  a  certi-names  of  the 
ficate  of  the  name  of  the  sheriff  of  his  county,  and  the  sureties  to  l^^^^  sureties. 
his  bond  for  the  collection  of  public  taxes,  which  certificates,  when 
certified  by  the  comptroller,  shall,  on  motion  of  the  treasurer  for 
judgment  against  any  such   sheriff  and  his   sureties,    be  deemed 

equally  valid  in  law  with  the  bond  of  such  sheriff,  and  the  court 
shall  give  judgment  and  award  execution  thereon  accordingly. 

84.  If  any  clerk  of  the  county   court  shall  fail   to  furnish  the  Penalties  on 
comptroller  with  such  certificate,  as   directed  in  the   last  section,  ^^^''^^^^^Jg||" 
he  shall  forfeit  and  pay  one  thousand  dollars,  to   be   recovered  by  comptroller 
the  treasurer  for  the  use  of  the  State,  and  such  clerk,  so  failing  and  'w'^'h  nanies  of 

c     r--  i-  •!•  T  r  11  sheriffs,  &c. 

lorieitmg,  or  lailmg  to  return  a  list   of   taxable   property,   as   pre-  and  for  failing 
scribed  in  this  act,  shall  be  considered  guilty  of  a  misdemeanor  in  ^g^^^gf  '^'^'^^^^^ 
office,  and  on  conviction  shall  be  dismissed  accordingly,  and  shall 
thereafter  be  held  ineligible  to  the  apj)ointment  of  the  clerkship  of 
his  county. 

85.  In  all  cases  of  failure  of  a  sheriff  or  ether  accounting  officer  Comptroller's 
to  settle  his  account  within  the  time  by  law  required,  and  to   take  5^"^^^^^^^*^^ 
the  oaths  prescribed  by  law,  it  shall  be  the  duty  of  the  comptroller,  accounting 
and  he  is   hereby  directed,  to  report   immediately  on  the  same,  "gf^'^j^   "^^  ^  ^° 
allowing  to  the  failing  sheriff  neither  commissions  nor   insolvents, 

but  adding  to  his  account  the  sum  of  four  hundred  dollars,  as  the 
supposed  amount  of  such  delinquents,  receipts  from  the  tavern  keep- 
ers and  persons  failing  to  give  in  their  lists  of  taxable  property. 
And  upon  such  report,  and  such  sheriff  or  other  accounting  officer 
failing  to  appear  and  fully  pay  up  and  finally  settle  for  the  sums,  so 
reported  against  him,  as  directed  by  law,  it  shall  be  the  indispensa- 
ble duty  of  the  treasurer,  and  he  is  hereby  required  to  take   iudg- l^"ty  of  the 

•1  11  ri  1  11  11      treasurer  m 

raent,   without   delay,  tor  the  several  sums    or   balances,  due  the  taking  judg- 
State  agreeably  to  such  report,  against  the  sheriff  and  his  sureties,  ment  against 
or  against  such  other  accounting   officer  and  his  sureties,  and  it  is  gcer.         ° 
hereby  declared  that  in  all  cases  of  delinquency  of  sheriffs  or  other 
accounting  officers,  the  comptroller's  certificate  shall  be  held  and 

82.  1784,  c.  219,  s.  6. 

S3.  1737,  C.  2C9,  s.  3. 

84.  1806,  c.  699,  s.  3.  I 

8.5.  1827,  c.  1,  s.  7  and  8. 


532  REVENUE.  [Chap.  CII. 

deemed  sufficient  testimony  for  the  court  and  jury  to  found  their 
verdict  on. 
Summary judg-  86.  No  citation  or  other  warning  shall  be  required  or  held 
merits  may  be  necessary,  preparatory  to  the  taking  judgment  against  any  dehn- 
all  accounting  cjucnt  sheriff  or  other  collecting  revenue  officer,  but  the  delinquency 
officers.  of  all  such  officcrs  shall  be  and  the  same  is  hereby  declared  to  be 

held  and  deemed  good  and  sufficient  notice,  and  shall  be  so  con- 
sidered by  the  courts  in  this  State  as  well  for  the  officers  them- 
selves as  for  their  sureties  ;  and  on  all  motions  at  the  instance  of 
the  treasurer  by  the  attorney  general,  in  behalf  of  the  State,  for 
arrears  of  taxes  or  other  money  due  the  State,  judgment  shall  be 
granted  as  well  against  the  principals  as  their  sureties,  whhout  fur- 
ther notice  accordingly. 
How  penalties       q>j ^  ^jj  penalties  imposed  by  this  act  upon  clerks,  sheriffs  and 

onclerks.jus-    .        .  r         j    v  •        •      ./  r  c  r     ^        ^      • 

tices  and  sher-  justices  lor  delmqucncies  in  the  periormance  ol  any  oi  the  duties 
cowred^^^^  '^^"  here  enjoined,  where  the  penalties  are  declared  to  be  solely  for  the 
use  of  the  State,  shall  be  recovered  in  any  court  of  record  by  the 
treasurer,  on  motion  of  the  attorney  general,  or  any  of  the  solicitors 
of  the  State,  on  the  certificate  of  the  comptroller   stating  such  de- 
linquency, which  certificate  the  comptroller  is  hereby  required  to 
furnish  to  the  treasurer  immediately  after  the  first  day  of  October 
in  each  year, 
^d^^'^ent  ma         ^^*   "^^^  public  treasurer  shall  have  power  and  authority  to  move 
be  taken  by  the  for  judgment  against  any  person,  indebted  to  the    State,   in  any 
treasurer  court  of  rccord  in  this    State,  in  the  same  manner  and  under  the 

against  any  '  •■      i   •  r   i 

personindebted  same  rules  and  regulations,  which  are  prescribed  m   cases   oi  de- 
to  the  states  -  jj^q^gj^^  sheriffs,    and   the   said  court   shall  render  judgment  and 
'  award  execution,   though  the  amount  thereof  may  be  within  the 
jurisdiction  of  a  justice  of  the  peace. 

86.  ir93,  c.  383,  s.  9. 

87.  Amendment. 

88.  1822,0.  1150. 


Note. — References  to  Adjudged  Cases. 

Sect.  10.  Cowley  vs.  Brittain,  2  Hawks,  204.     Wynn  vs.  Wright,  1  Dev.  and  Bat.  19. 
Sect.  24.  Jones  vs.  Justices,  2  Murph.  157. 
Sect.  39.  Rhodes  vs.  Buie,  2  Dev.  524. 

Sect.  43.  Fitts  vs.  Hawkins,  2  Hawks,  394.    Lenoirrs.  W^ellbom,  1  Dev.  451.  Dickey 
vs.  Alley,  ib.  453.     Slade  vs.  Governor,  3  Dev.  365. 
Sect.  48.  Douglass  vs.  Short,  3  Dev.  432. 
Sect.  51.  Stanly  vs.  Smith,  1  Car.  Rep.  511. 
Sect.  55.  Jones  vs.  Gibson,  N.  C.  Term.  R.  41. 
Sect.  60.  Register  vs.  Bryan,  2  Hawks,  17. 
Sect.  61.  Avery  vs.  Rose,  4  Uev.  549. 
Sect.  86,  State  vs. ,  1  Hay.  28.     Oats  vs.  Darden,  1  Murph.  500. 


S» 


j^  gut's  eel  Slatirtes 


Chap.  CIIL]         rivers  and  creeks. 


533 


CHAPTER  103. 


RIVERS    AND    CREEKS. 


AN  ACT  CONCERNING  THE  IMPROVEMENT  OF  RIVERS  AND  CREEKS 
AND  TO  PREVENT  OBSTRUCTIONS  TO  THEIR  NAVIGATION. 


Section 

1.  County  courts  may  appoint  commis- 

sioners to  examine  rivers  and  creeks 
and  make  improvements. 

2.  Overseers  to  be  appointed,  and  their 

duty. 

3.  Justices  may  direct  flats,  &c.  to  be 

purchased  or  hired. 

4.  Penalty  for  felling  trees  in  the  rivers, 

&c. 

5.  Powers  of  the  county  courts  of  John- 

ston, Wayne,  &c.,  as  to  the  river 
Neuse. 

6.  Duty  of  the  county  solicitors  in  re- 

gard to  the  improvement  of  rivers 
and  creeks — Powers  of  the  superior 
court  in  regard  to  it. 


Section 

7.  Pees  of  solicitors  for  their  services 

under  this  act. 

8.  County  courts  may  lay  off  their  riv- 

ers, &c.  into  districts — One  fourth 
of  the  river  to  be  left  open  for  the 
passage  of  fish. 

9.  Penalty  for  erecting  a  stand,  &c.  in 

the  part  of  the  river  required  to  be 
left  open  for  the  passage  offish. 
10.  Penalty  for  setting  nets  across  the 
main  channel  of  any  navigable 
stream — To  erect  stand,  &c.  to  pre- 
vent the  passage  of  fish  indictable 
— Proviso  as  to  seines. 


11, 


Slaves  violating  the  last  section  to  be 


whipped. 


1, 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  a  majority  of  the  justices  of  the  court  of  pleas  and  quarter 
sessions  of  the  several  counties  of  this  State  shall  have  full  power 
and  authority,  in  open  court,  where  any  inland  river  or  stream  shall 
run  through  the  county,  or  be  a  line  of  the  county,  of  which  they 
are  justices,  by  order  of  court  to  appoint  commissioners  to  view 
and  inspect  such  river  or  stream,  and  make  out  a  scale  of  the  ex- 
pense of  labor,  with  which  the  opening  and  clearing  the  same  will 
be  attended  ;  and  if  the  same  shall  be  deemed  within  the  compass 
of  the  abilities  of  the  county,  and  that  the  burden  will  be  compen- 
sated by  the  utility,  to  appoint  and  authorize  the  commissioners  to 
proceed  in  the  most  expeditious  manner,  in  opening  and  clearing 
the  same,  by  taking  such  hands  off  the  making  or  repairing  the 
public  roads,  as  the  court  shall  permit,  and  direct  to  be  appropri- 
ated to  such  work,  which  hands  shall  be  placed  under  overseers  in 
companies,  every  overseer  and  company  to  have  a  distinct  portion 
of  such  rivers  or  streams  laid  off  by  the  court. 

2.  The  overseers  shall  be  appointed  by  the  county  court,  and  it 
shall  be  the  duty  of  the  clerk  to  issue  a  notice,  expressing  therein 
the  name  of  the  stream,  the  distance  the  overseer  is  to  work  there- 


9 


County  courts 
may  appoint 
commissioners 
to  examine 
rivers  and 
creeks  and 
make  improve- 
ments. 


Overseers  to 
he  appointed, 
and  their  duty. 


1.  1784,  C.227,  s.  16.— 1785,  c.  242,  s.  1.— 1796,  c.  460,  s.  1.— 1790,  c.  331,  s.  2. 

2.  1809,  c.  782,  s.  3.— 1312,  c.  845,  s.  1,  2  and   3.— 1813,  c.  859,  s.  1  and  2.— 1796,  c. 
460,  s.  2.— 1784,  c.  227,  s.  16. 


534 


RIVERS    AND    CREEKS.  [ChAP.  CIII. 


Justices  may 
direct  flats,  &c. 
to  be  purchased 
or  hired. 


Penalty  for 
felling  trees  in 
the  rivers,  &c. 


Powers  of  the 
county  courts 
of  Johnston, 
Wayne,  &c. 
as  to  the  river 
Neuse. 


on,  and  the  hands  appointed  to  work  under  him,  and  of  the  sheriff 
to  serve  the  same  upon  them,  under  the  same  rules  as  notices  are 
issued  and  served  upon  overseers  of  the  roads  ;  and  the  overseers 
and  hands  aforesaid,  upon  receiving  three  days'  previous  notice 
from  the  commissioners,  shall  proceed  to  work  upon  and  clear  out 
such  river  or  stream,  subject  to  the  same  rules  and  double  the  pen- 
alties, imposed  by  law  upon  overseers  and  hands  working  upon  the 
public  roads  ;  and  no  overseers  or  hands,  appointed  to  open  and 
cleanse  navigable  rivers  and  streams,  shall  be  compelled  to  work  on 
public  roads. 

3.  The  justices,  appointing  the  commissioners  aforesaid,  shall 
have  full  power  and  authority,  where  the  same  shall  appear  to  them 
to  be  necessary  and  expedient,  to  direct  the  commissioners  to  pur- 
chase or  hire  a  flat  with  a  windlass  and  the  appurtenances,  neces- 
sary to  remove  loose  rocks  and  other  things,  which  may  by  such 
means  be  more  easily  removed,  and  allow  the  same  flat,  windlass 
and  appurtenances  to  be  paid  for  out  of  the  county  tax  :  Provided, 
nothing  herein  contained  shall  affect  private  property. 

4.  If  any  person  or  persons  shall  obstruct  the  free  passage  of 
boats,  by  felling  trees  or  by  any  other  means  whatever,  he  or  they 
so  offending  shall  be  liable  to  be  indicted,  and  upon  conviction 
shall  be  fined  at  the  discretion  of  the  court. 

5.  It  shall  and  may  be  lawful  for  the  justices  of  the  courts  of 
pleas  and  quarter  sessions  of  the  counties  of  Johnston,  Wayne, 
Lenoir  and  Craven,  seven  justices  being  on  the  bench,  at  the  first 
court  which  shall  be  held  for  their  respective  counties  after  the 
first  day  of  July,  yearly,  to  appoint  and  lay  off,  in  convenient  dis- 
tricts, all  the  inhabitants  of  their  counties,  respectively  resident 
within  such  distances  from  the  river  Neuse,  as  the  respective  coun- 
ty courts  shall  appoint,  and  above  Spring  garden  on  both  sides  of  the 
said  river,  and  to  appoint  for  each  district  some  person  properly 
qualified  as  overseer,  who  shall  cause  all  the  persons,  within  the 
district  so  allotted  him,  who  are  liable  to  work  on  public  roads,  to 
work  at  least  six  days  in  each  and  every  year  on  the  said  river 
Neuse,  unless  the  county  courts  shall  otherwise  direct ;  when  he 
shall  cause  that  they  be  employed  in  cutting  into  proper  lengths 
and  removing  all  logs,  and  in  removing  all  brush  and  other  obstruc- 
tions to  the  navigation,  under  the  penalty  of  twentyfive  dollars  for 
failure  or  neglect,  to  be  recovered  and  applied  as  fines  and  forfeit- 
tures  incurred  by  overseers  of  roads  ;  and  all  and  every  person, 
liable  to  work  as  aforesaid,  who  shall  fail,  when  summoned  or 
warned  (agreeably  to  the  custom  in  working  on  roads,)  to  appear 
with  such  tools,  as  the  overseer  shall  direct,  and  work  accordingly, 
shall  forfeit  and  pay  the  sum  of  one  dollar  for  each  day  he  shall 
fail  or  neglect,  to  be  recovered  and  applied  as  fines  for  failing  to 
appear  and  work  on  pubhc  roads  :  Provided  hoicever,  that  nothing 
contained  in  this  section  shall  be  so  construed,  as  in  any  wise  to 
abridge  or  interfere  with  the  rights  and  privileges  of  the  Neuse 
River  Navigation  Company. 


3.  1785,  c.  242,  s.  2. 

4.  1796,  c.  460,  s.  2. 

5.  1823,  c.  1197. 


I 


Chap.  CIIL]         rivers  and  creeks.  5S5 

6.  It  shall  be  the  duty  of  the  county  solicitor  for  each  and  every  Duty  of  the 
county,  through  any  part  or  on  the  borders  of  which   any  stream  to "s"in  regard 
may  pass,  to  inform  himself  of  the  laws,  whether  private  or  pubhc,  to  the  improve- 
made  for  the  improving  the  navigation  of  such  stream  or  streams,  ^d^creets'^'^^ 
and  where  the  power  of  carrying  such  laws  into  effect  is  vested  in  the 

county  courts,  to  apply  to  the  court,  of  which  he  is  solicitor,  at  the 
first  term  thereof  w^hich  shall  be  held  after  the  annual  election  of 
sheriff,  to  make  the  necessary  orders  and  appointments  for  effecting 
the  object  of  such  law  or  laws,  and  if  such  court  shall  fail  or  refuse 
to  make  such  orders  and  appointments,  it  shall  be  the  duty  of  such 
solicitor  to  make  a  record  on  the  State  docket  of  his  application, 
and  appeal  thereon  to  the  next  superior  court  of  law  to  be  held  for 
such  county,  when  it  shall  be  the  duty  of  the  solicitor  of  the  supe- 
rior court,  or  person  acting  as  such,  to  apply  to  the  judge  of  the  Powers  of  the 
superior  court  to  make  such  orders  and  appointments,  as  may  be  ne-  ppenor  court 

I  ^  ^  i-  -i-  -'  •/     ^  jji  rsffSLrd.  to  it- 

cessary  for  carrying  such  laws  into  effect  ;  and  to  enable  the  judge 
to  obtain  such  information  as  he  may  need  to  govern  him  in  making 
such  orders  and  appointments,  he  is  hereby  empowered  to  call  upon 
the  clerk,  sheriff,  grand  jurors,  petit  jurors,  or  any  other  person 
who  may  be  attending  the  court,  for  any  information  which  it  may 
be  in  his  power  to  give  touching  the  subject,  and  to  make  all  such 
orders  and  appointments  as  by  the  laws  county  courts  may  be  em- 
powered to  make,  which  orders,  when  made,  shall  be  in  all  respects 
as  obhgatory  as  though  they  had  been  made  by  the  county  court. 

7.  The  county  and  superior  court  solicitors  shall  respectively  be  Fees  of  solic- 
entitled  to  the  same  fees,  for  any  application  either  of  them   may  ^*°''^.  *°'' ^'^^J'" 
make  under  this  law,  as  they  are  now  allowed  for  prosecuting  any  this  act. 
indictment  in  said  courts,  to  be  paid  out  of  the  moneys   collected 

for  county  uses,  in  the  county  where  such  application  is  made. 

8.  The  county  courts  of  pleas  and  quarter  sessions  shall  be  and  Countj^  courts 
they  are  hereby  empowered  to  appoint  commissioners  to  examine  ^jg^.^*^^  °^ 
and  lay  off  the   rivers  in  their  county,  and  where  the  river  is  a  &c.  into  di's- 
boundary  between  two  counties,  to  lay  off  the  river  on  the  side  of  ^"'^^®' 

the    county    appointing   such    commissioners  ;    and  further,    such 

commissioners,  in  laying  off  the  rivers,  shall  allow  three  fourths  of 

such  river  for  the  owner  or  owners  of  the  same,  for  the  purpose 

of  erecting  stops,  dams  and  stands,  and  one  fourth  part,  including 

the  deepest  part  of  the  river  and  creeks,  they  shall  leave  open  for  One  fourth  of 

the  passage  of  fish,  marking  and  designating  the  same  in  the  best  jefipp^enfoi- the 

manner  they  can  ;  and  where  any  mill  or  mills  are  built  across  any  passage  of  fish. 

such  river,  and  slopes  are  or  may  be  necessary,  commissioners  shall 

be  appointed  as  above,  who  shall  layoff  such  slope  or  slopes,  and 

determine  the   length  of  time  such  shall  be  kept  open  ;  and  such 

commissioners   shall   and  they  are  hereby  required   to   return,  to 

their  respective  county  courts,  a  plan  of  such  falls,  dams  and  other 

parts  of  rivers,  as  may  have  been  thought  necessary  to  survey  as 

above. 

9.  All  and  every  person,  who  shall  hereafter  erect  any  stand,  fre".tina^'^ 

6.  1809,  c.  782,  s.  1. 

7.  1809,  c  782,  s.  2. 

8.  1787,  c.  272,  S.  1. 

9.  1737.  C.  272,  s.  2. 


536 


ROADS,    FERRIES,    ETC.  [ChAP.    CIV. 


stand,  &c.  in 
the  part  of  the 
river  required 
to  be  left  open 
for  the  passage 
of  fish. 


Penalty  for  set- 
ting nets  across 
the  main  chan- 
nel of  any  nav- 
igable stream. 


To  erect  stand, 
&c.  to  prevent 
the  passage  of 
fish  indictable. 


Proviso  as  to 
seines. 


Slaves  viola- 
ting the  last 
section  to  be 
whipped. 


dam,  weir  or  hedge,  in  such  part  of  the  river  as  by  this  law  is  re- 
quired to  be  left  open  for  the  passage  of  fish,  or  who  shall  not 
make  and  keep  open  any  such  slope  as  the  commissioners  may 
judge  necessary,  shall  forfeit  and  pay  ten  dollars  for  every  twenty- 
four  hours  he  shall  keep  up,  erect  or  make  any  such  dam,  stand, 
weir  or  hedge,  or  dam  up  or  stop  any  such  slope,  to  be  recovered 
by  any  person  suing  for  the  same,  one  half  to  his  own  use,  the 
other  half  to  be  applied  to  the  use  of  the  county,  either  by  warrant 
before  a  justice  of  the  peace  or  in  a  court  of  law,  as  the  case  may 
require. 

10.  It  shall  not  be  lawful  for  any  person  in  this  State  to  set, 
or  cause  to  be  set,  any  net  of  any  description  across  the  main 
channel  of  any  navigable  river  or  creek  in  this  State,  under  the 
penalty  of  forty  dollars,  to  be  recovered  by  any  person  suing  for 
the  same,  to  his  or  her  own  use,  before  any  jurisdiction  having  cogni- 
zance thereof ;  and  if  any  person  shall  erect,  so  as  to  extend  more 
than  three  fourths  of  the  distance  across  the  channel  of  such  river 
or  creek,  any  stand,  dam,  weir  or  hedge,  or  other  obstructions  to 
the  passage  of  fish,  such  person  so  offending  shall  be  liable  to 
indictment,  and,  upon  conviction,  shall  be  fined  at  the  discretion 
of  the  court  :  Provided,  that  nothing  herein  contained  shall  pre- 
vent, or  be  construed  to  prevent,  any  person  or  persons  from  work- 
ing and  hauling  their  seines  across  any  of  the  rivers  or  creeks,  in 
the  same  manner  as  heretofore  in  use. 

11.  If  any  slave  shall  be  guilty  of  the  offence  mentioned  in  the 
last  section,  without  the  knowledge  or  consent  of  his  or  her  master 
or  mistress,  he  or  she  so  ofTending  shall  have  and  receive  thirty- 
nine  lashes  on  his  or  her  bare  back. 


LO.  1796,  c.  454,  s.  1  and  3,  amended- 
11.   1796,  c.  454,  s.  2. 


CHAPTER   104. 


ROADS,  FERRIE8   AND   BRIDGES. 


AN  ACT  CONCERNING  THE  PUBLIC  ROADS,  FERRIES  AND  BRIDGES 

IN  THIS  STATE. 


Section 

1.  What  shall  be  public  roads  and  fer- 

ries— County  courts  to  settle  ferries, 
and  order  the  laying  out  public 
roads. 

2.  Manner  in   which  ferries  are  to  be 

settled,  and  public  roads  to  be  laid 
out,  altered  or  discontinued. 


Section 

3.  Appeals   allowed,   and    proceedings 

thereon. 

4.  Directions  as  to  how  roads  shall  be 

laid  out. 

5.  Penalty  on  persons  for  turning  roads 

contrary  to  law. 

6.  Where  an  overseer  refuses  to  receive 


sy- 


Chap.  CIV.]        roads,  ferries,  etc. 


537 


Section 

a  road  altered  or  turned  according 
to  law,  what  proceedings  may  be 
had. 

7.  How  persons  may  turn  or  alter  roads 

on  their  own  lands  in  certain 
cases. 

8.  County  courts  to  appoint  overseers 

of  roads — Penalty  for  not  serving — 
Not  to  be  compelled  to  serve  more 
than  one  year  in  three. 

9.  Clerks  to  furnish  sheriffs  with  orders 

appointing  overseers— SheriflTs  to 
apply  at  the  clerk's  office  for  the 
same,  and  to  serve  the  overseers 
with  copies — Penalty  on  clerks  and 
sheriffs  for  failing. 

10.  Overseers  to  summon  the  hands  liable 

to  work  on  public  roads — What  per- 
sons are  liable. 

11.  Overseers  competent  to  prove  notice 

to  hands. 

12.  No  person,  liable  to  work  on  public 

roads,  to  be  exempt,  unless  exemp- 
ted by  the  county  court. 

13.  Overseers  may  lay  off  their  roads  into 

equal  parts  among  their  hands. 

14.  Of  what    width    public  roads   and 

causeways  shall  be. 

15.  Overseers  may  cut  poles  and  timber 

and  dig  earth  on  any  adjoining 
lands. 

16.  Owners  of  such   lands  may  petition 

the  county  court  for  indemnification. 

17.  Overseers    to    make   footways  over 

swamps  and  runs  of  water,  where 
the  county  court  may  direct. 
IS.  Overseers  to  set  up  sign  posts  at  the 
forks  of  roads — Penalty  on  over- 
seers for  not  setting  up,  and  upon 
persons  for  removing,  &c.  sign 
boards. 

19.  Overseers  to  measure  the  roads  within 

their  districts,  and  set  up  mile 
posts. 

20.  Penalty  on   overseers  for  neglect  of 

duty,  or  not  keeping  roads  in  re- 
pair. 

21.  Penalty  on  persons  for  erecting  bars 

across  any  public  road. 

22.  County  courts  may  cause  bridges  to 

be  erected  across   streams,  where 


Section 

necessar}',  at  the  expense  of  the 
county. 

23.  Contracts,  made  by  the  justices,  for 

building  bridges,  to  be  binding  on 
them  and  their  successors. 

24.  Owners  of  water  mills,   situate  on 

public  roads,  to  keep  up  bridges 
connected  with  their  mill  dams. 

25.  Penalty  on    owners  of   water  mills 

for  failing  to  keep  up  bridges. 

26.  County  courts    may  authorize   the 

building  of  toll  bridges. 

27.  County  courts  to  regulate  the  rates 

of  ferriage. 
2S.  Owners   of   ferries   may   build  toll 
bridges  at  their  ferries. 

29.  County  courts  may  compel  keepers 

of  ferries  and  owners  of  toll  bridges 
to  give  bond,  &c. — How  persons 
injured  may  proceed  to  recover  on 
such  bonds. 

30.  Penalty  on  persons  not  empowered,  . 

for  keeping  a  ferry,  or  transporting 
persons  within  ten  miles  of  any 
ferry  for  pay — Proviso  for  persons 
contracting  to  carry  the  mail. 

31 .  Keepers  of  public  ferries  to  keep  up 

a  house  of  entertainment  at  their 
ferries. 

32.  Penalty  for  fastening  a  vessel  to  a 

float  bridge. 

33.  In  what  cases  the  county  courts  may 

order  the  laying  out  of  cart  ways — 
Proceedings  for  such  purpose. 

34.  Persons,  across    whose   lands    cart 

ways  are  laid  out,  may  erect  bars  or 
gates  across  the  same. 

35.  Cart  ways  to  be  frp.e  for  all  persons 

to  pass. 

36.  Appeals  allowed  from  orders  to  lay 

out  cart  ways. 

37.  County  courts   may  authorize    the 

erection  of  gates  across  public 
roads. 

38.  How  a  person,  desirous  of  erecting  a 

gate  across  a  public  road,  shall  pro- 
ceed to  obtain  an  order  for  that 
purpose  —  Appeal  allowed — Gates 
to  be  subject  to  tax. 

39.  Forfeitures,  how  to  be  recovered  and 

applied. 


1.   Be  it  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina,  and  it    is  hereby  enacted  by  the    authority  of  the  same, 
That  all  roads  and  ferries  in  the  several  counties  in  this  State,  that  What  shall  be 
have  been  laid  out  or  appointed  by  virtue  of  any  act  of  assembly  P^d'fei^ies^^ 


1.  1784,  e.  227,  s.  1. 

yoL.  I. 


68 


538       .  ROADS,    FERRIES,  ETC.  [ChAP.  CIV. 

heretofore  made,  or  by  virtue  of  any  order   of  court,  are  hereby 
County  courts  declared  to  be  public  roads  and  ferries,  and  that  from  time  to  time 
to  settle  ferries  ^^^  gj  q\\  times  hereafter,  the  courts  of  pleas  and  quarter  sessions  of 
laying  out  pub- the  Several  counties  in  this  State,  shall  have  full  power  and  author- 
lie  roads,         ity  to  appoint  and  settle  ferries,  and  order  the   laying  out  public 
roads,   where  necessary,   and  to  appoint  where  bridges  shall  be 
made,  and  to  discontinue  such  roads,  as  are  now  or  shall  be  here- 
after made,  as  shall  be   found   useless,   and   to  alter  roads   so   as 
to  make-  them  more   useful,  as  often  as  occasion  shall  require. 
Marnier  in  2.   The  said  county  courts  of  pleas  and  quarter  sessions  shall  not 

^^^^^emes  appoint  or  settle  any  ferry,  or  order  the  laying  out  of  any  pubhc 
tied  and  pub-  road,  or  discontinue  or  alter  such  roads,  as  now  are  or  shall  here- 
f  V°  n't*  alte^r-  ^^^^^  ^®  made,  unless  upon  the  petition,  in  writing,  of  one  or  more 
edordis'contin-  persons  in  the  said  court  filed  ;  and  unless  such  petitioner  or  peti- 
^^^-  tioners  shall  make  it  appear  to  the  satisfaction  of  the  court,  that  all 

and  every  such  person,  over  whose   lands  the  said  road  may  pass, 
or  whose  ferry  heretofore  established  shall  be  within  two  miles  of 
the  place,  at  which  the  said  petitioner  may  pray  the  court  to  estab- 
lish a  ferry,  shall  have  had  twenty  days   notice  of  the   intention  of 
fihng  said  petition,  the  court  shall  cause  the  said  petition  to  be  filed 
in  the  clerk's  office  until  the  succeeding  court,  and  notice  thereof 
to  be  posted  during  the  same  period   at   the  court  house  door,  at 
which  court  the  justices  present  shall  hear  the  allegations  set  forth 
in  the  said  petition,  and  if  sufficient  reason  be   shown,  the  court 
shall  have  full  power   and   authority  to   appoint  and  settle  the  said 
ferry,  or  to  order  the  laying  out,  or  to  discontinue  or  alter  the  said 
roads,  as  the  case  may  be. 
Appeals  allow-      3,   If  any  persons  or  persons  shall  be  dissatisfied  with  the  judg- 
in4'\hereon!  "  ment,  sentence  or  decree,  which  the  court  may  pass  or  pronounce 
on    said   petition,   such  person,   so  dissatisfied,   may  pray  an  ap- 
peal to  the  superior  court  of  law  of  the  said  county,  but,  before  ob- 
taining the;same,  shall  enter  into  bond  with  two  or  more  sufficient 
securities,  to  be  judged  of  by  the  said  court,  for  the  faithful  prose- 
cution of  said  appeal,  and  for  the  faithful  performance  of  the  judg- 
ment, sentence  or  decree  of  the   said  superior  court,  which  bond 
shall  be  made  payable  to  the  person  or  persons,  who  shall  have 
filed  said  petition,  or  to  such  person  or  persons  who  shall  have  op- 
posed the   same,  as  the  case  may  be,  and   the  appeal  so  granted 
shall  be  subject  to  the  same  rules  and  regulations   as  appeals  in 
other  cases  from  the  county  courts  to  the  superior  courts  ;  and  the 
said  superior  courts  shall  proceed  to  hear  and  determine  the  said 
petition,  as  shall  appear  right  and   expedient  :  Provided  neverthe- 
less^ that  nothing  in  this  act  contained  shall  authorize  the  superior 
court  to  interfere  in  fixing  or  regulating  the  rates  of  ferriage,  tolls 
of  bridges,  or  the  distribution  or  allotment  of  hands  to  work  under 
overseers  of  the  public  roads. 
Directions  as         4.   All  roads,  to  be  hereafter  laid  out,  shall  be  laid  out  by  a  jury 
to  how  roads    Qf  freeholders,  to  the  greatest  advantage  of  the  inhabitants,  and  as 

shall  be  laid  i  a  o 


out. 


2.  1813,  c.  862,  s.  1. 

3.  1813,  c.  862,  s.  1. 

4.  1784,  c.  227,  s.  2. 


Cha.p.  civ.]        roads,  ferries,  etc.  539 

little  as  may  be  to  the  prejudice  of  enclosures,  which  laying  out, 
and  such  damage  as  private  persons  may  sustain,  shall  be  done  and 
ascertained  by  the  same  jury  on  oath,  which  oath  shall  run  in  these 
words,  to  wit:  "I,  A.  B.,  do  solemnly  swear,  that  I  will  lay  out 
the  road,  now  directed  to  be  laid  out  by  the  court  of  pleas  and 
quarter  sessions,  to  the  greatest  ease  and  advantage  of  the  inhabi- 
tants, and  with  as  little  prejudice  to  enclosures  as  may  be,  without 
favor,  affection,  mahce  or  hatred,  and  to  the  best  of  miy  skill  and 
knowledge:  so  help  me  God."  And  all  damages  to  be  hereafter 
.thus  assessed,  shall  be  deemed  a  county  charge,  and  be  defrayed, 
from  the  tax  on  each  county,  laid  for  contingent  charges. 

5.  No  person  shall  turn,  alter  or  change  any  pubHc  road,  unless  Penalty  on  per- 
in  the  manner  above  prescribed  for  the  laying  out  of  new  roads,  ?°"®  fortum- 

/  1  •       r  •  1     1   \  1  11  r  1    11      m?  roads  con- 

(except  as  heremaiter  provided,}  under  the  penalty  ot  ten  dollars  trary  to  law. 
for  each  month  such  road  is  turned  out  of  the  old  course,  without 
the  permission  obtained  as  aforesaid  of  the  court,  and  the  old  road 
shall  in  no  case  be  shut  up,  until  the  overseer  shall  certify  to  the 
court,  that  the  new  opened  road  is  in  good  and  sufficient  order. 

6.  Whenever  any  person,   by  permission   of  the   court  of  his  where  an  over- 
county,  and  agreeably  to  law,  shall  have  turned,  altered  or  chang-  seer  refuses  to 
ed  any  road,  and  shall   tender  the  same  to  the  overseer,  and  the  altered  or  turn- 
overseer  shall  refuse  to  receive   said  road,  upon  the  ground  that  f*^  ^'='^?'''^i°s  t"* 

,  .  ,  ,   .  .  ,  ^    .  11  1      law,  what  pro- 

the  said  road  is  not  in  good  or  sumcient  order,  the  person,  mak- ceedin^s  may 
ing  such  alteration  in  the  road,  if  dissatisfied  with  the  decision  of '^^  ^'^'^• 
said  overseer,  may  petition  the  court  of  his  county,  who  shall  ap- 
point three  persons  to  examine  said  road,  and  their  report  as  to 
the  condition  of  the  road  shall  be  conclusive  ;  and  in  like  manner 
any  person  liable  to  work  on  any  road,  or  any  person  sending  three 
hands  to  work  on  any  road,  and  dissatisfied  with  the  certificate  or 
decision  of  any  overseer,  that  a  road  altered  or  turned,  or  a  new 
road  opened  is  in  good  and  sufficient  order,  may  make  his  objec- 
tion to  said  certificate  to  the  court  of  his  county,  at  the  term  such 
certificate  is  returned,  and  said  court  shall  appoint  three  persons 
to  examine  said  road,  and  their  report  as  to  the  condition  of  said 
road,  shall  be  conclusive. 

7.  Any  person,  through  whose  farm  or  land  a  public  road  passes,  How  persons 
or  may  hereafter  pass,  may  turn  or  alter  the  same,  by  laying  off  the  ^^Jj.  ^^""^g ^^^^ 
road  as  he  proposes,  so,  hovi'ever,  as  not  to  interfere  with  the  land  their  own 

of  any  other  person,  and  put  it  in  a  good  and  proper  condition  as  a  J.^ggg  ^"^ ''^^''^^'^ 
public  highway  ;  but  before  he  shall  close  up,  or  in  any  way  ob- 
struct the  former  road,  he  shall  apply  to  a  justice  of  the  peace, 
whose  duty  it  shall  be  to  summon  two  disinterested  freeholders  to 
attend  on  the  premises,  on  a  given  day,  who,  after  having  taken  an 
oath  to  that  effect,  shall  together  within  himself,  view  and  examine 
the  road,  as  proposed  to  be  altered  or  turned,  and  report  its  con- 
dition, and  such  other  facts  connected  with  the  case,  as  may  be 
necessary  to  determine,  whether  such  alterations  should  be  made, 
to  the  next  court  of  pleas  and  quarter  sessions  to  be  held  for  the 

5.  1784,  c.  227,  S.  13.— 1813,  C.  862,  s.  1. 

6.  1817,  c.  939,  s.  1. 

7.  1334,  c.  22. 


540  ROADS,    FERRIES,  ETC.  [ChAP.    CIV. 

county,  and  upon  consideration  the  court  may  sanction  the  propos- 
ed aheration,  or  refuse  it  :   Provided  always,  that  the  overseer  of 
the  road  shall  have  five  days'  notice  of  the  time  and  place  of  meet- 
ing of  the  justice  and  freeholders. 
County  courts       8.   The  county  courts  of  the  several  counties  shall,  annually  and 
to  appoint        gg  Qftgn  as  may  be  necessary,  appoint  overseers  of  the  highways  or 
roads.  roads  within  their  respective  counties,  each  of  whom  shall  serve  as 

Penalty  for  not  g^ch^  under  the  penalty  of  forty  dollars  for  refusing,  and  shall  be 
deemed  and  held  liable  for  any  neglect  in  working  on  the  roads, 
until  he  shall  have  made  return  to  the  court  of  his  county,  and  shall 
make  it  appear  to  their  satisfaction,  that  he  has  done  the  duties  of 
an  overseer,  as  by  law  directed  :  Provided,  that  no  overseer  shall 
be  responsible  for  the  insufficiency  of  the  road,  of  which  he  is  ap- 
pointed overseer,  until  ten  days  after  he  shall  be  served  with  the 
notice  of  his  appointment,  as  hereinafter  directed  :  And  provided 
Not  to  be  com-  always,  that  no  person,  complvine  with  the  requisites  of  this  act, 

pelled  to  serve     ,     ,/,'  ii    j  ^  t  J      is  c  a     ■  . 

more  than  one  shall  be  Compelled  to  serve  as  overseer  ot   a  road  m  any  county 

year  in  three,  more  than  One  year  in  three. 

Clerks  to  fur-  9.   It  shall  be  the  duty  of  the  clerks  of  each  and  every  county 
wTthorders^p- court  of  pleas  and  quarter  sessions,  within  ten  days  after  the  rise 

pointing  over-  of  each  court,  to  furnish  their  respective  sheriffs  with  two  copies 

seers.  ^£  ^^^j^  order,   appointing  overseers  of  the  roads,  that  may  have 

Sh    ff  been  made  during  the  sitting  of  the  said  court.      And  it   shall   be 

ply  at  the  the  duty  of  the  sheriff  to  apply  at  the  office  of  the  clerk,  either  by 

clerk's  office  himself  or  some  other  proper  person,  within  ten  days  after  the  rise 

for  ihe  same,         ;,         ,  r        i       ^  •  i         i  i  i         i     n  •'         •    ■         i 

and  to  serve     01  cach  court,  lor  the  said  orders,  and  he  shall,  on  receivmg  them, 

wth^o'^^'^^'^      within  twenty  days,  serve  each  person,  so  appointed  overseer  of 

roads,  rivers  or  creeks,  with  one  copy  of  the  said  orders,  or  leave 

the  same  at  his  usual  habitation  ;  and  the  other  copy  it  shall  be  his 

duty  to  return  to  the  next  county  court  happening  thereafter,  with 

the  date  of  the  service  endorsed  thereon,  or  the  date  when  it  was 

Penalty  on       left  at  the  residence  of  the  said  overseer.     And  if  either  of  the  afore- 

clerks  and  ^^_^^  ggj^j  clerks  or  sheriffs  fail  or  neglect  to  perform  his  duty,  as  herein 

ing.  specified,  they  or  either  of  them  shall,  on  conviction  before  any 

competent  authority,  pay  for  such  neglect  the  sum  often  dollars. 
Overseers  to  10.   It  shall  be  the  duty  of  the  overseers  of  the  public  roads  to 

summon  the     guQimon  all  white  males,  between  the  aees  of  eighteen  and  fortyfive, 

hands  liable  to  iriii  i  i  (•••^i 

work  on  public  and  Ircc  males  ol  color  and  slaves,  between  the  agesoi  sixteen  and 
w^hat  persons  ^^^V  J^ars,  within  their  district,  to  meet,  at  such  times  and  places 
are  liable.  as  to  them  shall  seem  convenient,  for  the  repairing  or  making  such 
roads  as  shall  be  necessary  ;  and  whosoever  shall,  upon  such  sum- 
mons, refuse  or  neglect  the  duty  therein  required,  shall  forfeit  and 
pay  one  dollar  per  day  for  each  person  so  neglecting  or  refusing, 
to  be  recovered  of  the  guardian  or  father,  if  the  person  failing  be  a 
minor,  or  of  the  master  if  he  be  a  slave  :  Provided,  that  the  over- 
seers shall  give  notice  to  each  free  person,  or  the  master,  mistress 
or  overseers  of  slaves,  what  kind  of  tools  they  and  each  of  them 

8.  1784,  c.  227,  s.  3  and  9.— 1786,  c.  256,  s.  5.— 1812,  c.  845,  s.  3. 

9.  1812,  c.  845,  s.  1  and  2.— 1813,  c.  859,  s.  1  and  2. 

10.  1784,  c.  227,  s.  8  and  9.— 1736,  c.  256,  s.  2.— 1317,  c.  935,  s.  1  and  3.— 1825,  c. 
1295,  s.  2  and  3. 


Chap.  CIV.]       roads,  ferries,  etc.  541 

shall  bring  and  work  with  on  the  roads,  at  the  time  of  summoning, 
and  that  the  several  persons,  summoned  by  the  overseers  to  work 
on  the  roads  as  aforesaid,  shall  not  be  liable  to  any  fine  for  not  ap- 
pearing and  doing  their  duty,  unless  they  shall  be  so  summoned 
three  days  before  the  day  appointed  for  working. 

11.  In  all  cases,  where  overseers  of  roads  shall  be  compelled  to  Overseers  com- 
warrant  their  hands   for  neglect  or  refusal  to  perform  their  duty,  ^otkg\o°j,P|^^^^ 
such  overseers  shall  be  deemed  competent  witnesses  to  prove  no- 
tice to  them,  and  if  any  defendants  shall  be  unable  to  discharge  the 
judgment  and  costs  that  may  be  recovered  against  them,  the  costs 

of  the  said  warrants  shall  be  paid  by  the  county  courts  :  Provided, 
that  the  defendant  shall  first  have  taken  the  benefit  of  the  act  for 
the  rehef  of  insolvent  debtors. 

12.  No   person,   between   the  ages  prescribed  above   for  free  ^o  Person,  li- 

1  .  ^    J     ,  1   r  c        1  ^*       1  1     11  able  to  work  on 

white  men  and  slaves  and  tree  persons  ot  color  respectively,  shall  pubUc  roads,  to 
be  exempted  from  working  upon  the   public   roads,   except  such  |^e  exempt,  un- 
persons as  are  or  shall  be  exempted  by  the  General  Assembly,  or  by  the  county 
by  the  county  courts,  on  account  of  personal  infirmity,  of  which  court, 
the  said   courts,    seven  justices  being  present,   shall  be  the  sole 
judges,  and  also  such  as  shall  send  three  slaves  or  other  three  suffi- 
cient hands  to  work  on  the  roads  :   Provided,  that  nothing  herein 
contained  shall  be  construed  to  exempt  overseers  of  slaves  from 
working  on  roads. 

13.  It  shall  and  may  be  lawful  for  an  overseer,  if  required  by  a  P'^*^''^^^^  P^y 
majority  of  the  workmen  on  the  road  assigned  him,  to  lay  off  the  roads  into 
road  in  equal  apartments  for   the   ease   of  the  laborers,  who  shall '^'i"^^  P^'"'*. 

^,  ,  ,  ,  anions'  tlieir 

finish  his  or  their  part  in  a  time  agreed  on  between  him  and  each  hands. 
free  person,  master,  mistress  or  overseer,  and  on  default  of  any 
agreeing  party,  the  overseer  is  hereby  authorized  to  cause  such 
part  to  be  finished  by  the  hire  of  other  persons  to  do  the  same 
thereon,  to  tender  his  account,  and  demand  payment,  and,  on  re- 
fusal, to  warrant  for  the  same,  and  to  recover  the  money  to  his  own 
use  :   Provided,  the  time  agreed  upon  shall  not  exceed  ten  days. 

14.  All  roads  laid  off,  under  the  provisions  of  this  act,  shall  be  Of  what  width 
deemed  public  roads,  and  shall  be  at  the  least  twenty  feet  wide,  aiid'rau°ewavs 
and  where  by  the  overseers  of  roads  it  may  be  deemed  expedient  shall  be. 

to  make  or  repair  causeways  on  the  same  roads,  they  shall  be  at 
least  fourteen  feet  wide  ;  and  earth,  necessary  to  raise  or  cover 
the  said  causeways,  shall  be  taken  from  each  side  of  the  causeway 
equally,  and  so  as  to  form  a  drain  on  each  side  of  the  said  cause- 
way. And  the  overseers  of  public  roads  are  hereby  directed  to 
have  cut  and  completely  cleared  all  stumps  and  runners,  for  the 
width  of  sixteen  feet  in  the  centre  of  the  highways  under  their 
care,  of  which  width  necessary  bridges  through  swamps,  and  over 
small  runs,  creeks  or  streams  are  directed  to  be  made. 

15.  The  overseers  of  the  several  roads  are  hereby  authorized  to  ^^^^^j^g*^^^^ 
cut  poles  and  other  necessary  timber,  to  enable  them    to    comply  timber  and  dig 

11.  1823,  c.  1287.— 1817,  c.  935,  s.  2. 

12.  1784,  c.  227,  s.  8  and  9.— 1826,  c.  26,  s.  1  and  2. 

13.  1784,  C.  227,  S.  10. 

14.  1784,0.  227,  s.  4. 

15.  1786,  c.  256,  s.l.— 1813,  c.  976,  s.  1. 


542 


ROADS,    FERRIES,    ETC.  [ChAP.  CIV. 


earth  on    any 

adjoining 

lands. 


Owners  of  such 
lands  may  pe- 
tition the 
county  court 
for  indemnifi- 
cation. 


Overseers  to 
make  footways 
over  swamps 
and  runs  of 
water,  where 
the  county 
court  may  di- 
rect. 


Overseers  to 
set  up  sign 
posts  at  the 
forks  of  roads. 


Penalty  on 
overseers  for 
not  setting  up, 
and  upon  per- 
sons tor  re- 
moving, &c. 
sign  boards. 


Overseers  to 
measure  the 
roads  within 
their  districts 
and  set  up  mile 
posts. 


with  the  duties  enjoined  them  in  repairing  and  making  bridges  and 
causeways,  without  incurring  any  penalty  thereby.  And  when- 
ever earth  shall  be  needed  for  raising  or  covering  a  causeway  on  a 
pubhc  road,  and  the  same  cannot  be  conveniendy  procured  on 
either  side  of  the  causeway,  it  shall  and  may  be  lawful  for  the 
overseer  of  the  road  to  take  the  earth  required  from  any  adjoining 
land,  and  he  shall  not  be  liable  for  any  action  or  penalty  therefor. 

16.  The  owner  of  the  land,  thus  used,  may  if  he  deem  himself 
injured,  file  his  petition  in  the  court  of  pleas  and  quarter  sessions 
of  the  county,  wherein  the  causeway  thus  raised  or  covered  is 
situate,  and  pray  indemnification  ;  and  it  shall  be  the  duty  of  the 
court,  after  a  proper  examination  of  the  facts,  to  make  the  peti- 
tioner such  compensation,  out  of  the  county  funds,  as  shall  be 
adequate  to  the  injury  sustained  :  Provided,  that  this  and  the  pre- 
ceding section  shall  in  no  wise  be  construed  to  apply  to  the  lands, 
adjoining  or  contiguous  to  the  causeway,  or  great  road,  leading 
across  Eagle's  island  to  Wilmington. 

17.  It  shall  be  the  duty  of  the  overseers  of  the  road,  in  the 
several  counties,  where  the  county  courts  may  so  direct,  to  make 
or  cause  to  be  made  and  kept  in  repair,  good  and  sufiicient  foot- 
ways across  all  swamps  and  rnns  of  water,  that  may  cross  that 
part  of  the  road,  allotted  to  them  by  an  order  of  the  court  of 
said  county,  for  the  convenience  of  travellers  on  foot ;  and  also  to 
erect  and  keep  hand  rails  on  each  side  of  all  hollow  bridges,  where 
the  county  courts  may  direct,  which  may  be  situate  on  that  part  of 
said  road,  so  allotted  them  by  the  county  court. 

18.  All  overseers  of  roads  shall  cause  to  be  set  up,  at  the  forks 
of  all  roads  within  their  several  districts,  a  post  or  posts,  with  arms 
pointing  the  way  of  each  and  every  road,  with  directions  to  the 
most  public  places  to  which  they  lead,  with  the  number  of  miles 
from  that  place  as  near  as  can  be  computed  ;  and  every  overseer, 
who  shall  neglect  or  refuse  to  do  and  keep  the  same  in  repair,  shall 
forfeit  and  pay  for  every  such  neglect  the  sum  of  ten  dollars  :  Pro- 
vided, that  no  overseer  shall  be  considered  guilty  of  a  neglect  of  the 
duty  herein  enjoined,  unless  he  shall  fail  to  set  up  the  same  for  the 
space  of  fifteen  days.  And  every  person,  who  shall  wantonly  re- 
move, knock  down,  or  deface  the  said  arms,  shall  for  every  such 
offence  forfeit  and  pay  the  sum  of  ten  dollars,  and  be  moreover 
liable  to  indictment. 

19.  The  several  overseers  of  the  roads  shall  cause  the  public 
roads,  within  their  districts  respectively,  to  be  exactly  measured, 
where  the  same  has  not  already  been  done,  and  shall,  at  the  end  of 
each  mile,  mark  in  a  legible  and  durable  manner  the  number  of 
such  miles,  beginning,  continuing  and  marking  the  numbers,  in  such 
manner  and  form  as  the  court  of  the  counties  shall  severally  and 
respectively  direct ;  and  every  overseer  shall  keep  up  and  repair 
such   marks  and  numbers  within  his  district,  and  every  overseer, 


16.  1S18,  c.  976,  s.  2, 

17.  1817,  c.  940,  s.  1  and  2. 

13.  1784,  c.  227,  s.  11.-1812,  c.  846. 

19.  1784,  c.  227.  s.  12. 


Chap.  CIV.]       roads,  ferries,  etc.  543 

neglecting  to  mile  mark,  or  to  repair  the  mile  marks  within  his 
district,  according  to  the  intent  and  meaning  of  this  act,  for  the 
space  of  thirty  days  after  his  appointment  to  office,  shall  forfeit  and 
pay  the  sum  of  four  dollars. 

20.  Every  overseer  of  roads,  who  shall  refuse  or  neglect  to  do  Penalty  on 
his  duty,  as  is  by  this  act  directed,  or  who  shall  not  keep  the  roads  negke^of  duty 
and  bridges  clear  and  in  repair,  or  let   them  remain   uncleared  or  or  not  keeping 
out  of  repair  for  and  during  the  space  of  fifteen  days,  unless  hin-  m  lepair. 
dered  by  extreme  bad  weather,   shall  forfeit,  for  each  and  every 

such  offence,  the  sum  of  four  dollars  over  and  above  such  damages 
as  may  be  sustained. 

21.  If  any  person  or  persons  whatsoever  shall  erect,  or  cause  P^"^i*y  oj^  P^r- 

1  \     '  II-  1  1  11  sons  tor  erect- 

to  be  erected,  across  any  public  road,   any   bars,  he   or  they  soingbars  across 
offending  shall  be  subject  to  pay  the  sum   of  ten   dollars,   and   be  any  public 
moreover   liable   to  be   indicted  :   Provided,  that  no  gate  nor  toll 
bridge  shall  be  considered  as  liable  to  the  fine  hereby  imposed. 

22.  Where  a  bridge  shall  be  necessary  over  any  place,  where  the  County  courts 
overseer,  with  his  assistants,  cannot  conveniently  make  it,  the  court  j^^JaesTo^be 
of  the  county,  wherein  such  place  shall  be,  is  hereby  empowered  erected  across 
and  required  to  contract  and  agree  for   the  building,  keeping  and  necessary  at^ 
repairing  thereof,  and  to  levy  the  charge  in  their  county  ;  and  when  the  expense 
bridges  shall  be  necessary  over  any  such  creek  or  river,  which  di-  °  ^  ®  county, 
vides  one   county   from   another,  the   court  of  each  shall  join   in 
agreement  for  building,  keeping  and  repairing   the   same,    and  the 

charge  thereof  shall  be  defrayed  by  both  counties,  in  proportion  to 
the  number  of  taxables  in  each. 

23.  All  and  every  contract,  agreement  and  order,  by  the  justices  *-''^'^^''^^*^, 
of  the  court  of  any  of  the  counties  aforesaid  entered  into  or  made,  justices^for^ 
for  or  concerning  the  building,  keeping  or  repairing  bridges,  in  such  bnilding 
manner  as  to  them  shall  seem  most  proper,  shall  be  good  against  bindmg  on 
them  and  their  successors.  them  and  their 

24.  It  shall  be  the  duty  of  every  owner  of  a  water  mill  within  r,      '    J 

,  .„.•'.  •'  ,  ,.  ,  ,  Owners  of 

any  county,  whose  mill  is   situate   on   any  pubhc  road,  to  keep  at  water  mills, 
his  or  her  expense,  in  such  order  as  the  county  thereof  may  deem  j^j^^"^^^  °"  P"^" 
sufficient,  all  bridges  that  are   or  may  be  erected,  or  attached  to  keep  up' 
*his  or  her  mill   dam,  immediately  over   which  a  public  road  may  ^g^t'd^  *^'th' 
run  :   Provided,  that   nothing  herein  contained  shall  be  construed  their  mill 
to  extend  to  any  mill,  which  was  erected  before  the  laying  off  of '^^'^'*" 
any  such  road,  unless  such  road  was  laid  off  by  the  request  of  the 
owner  of  said  mill. 

25.  Every  owner  or  owners  of  any  such  water  mill,  who  shall  Penalty  on 
refuse  or  neglect  to  do  his  or  their  duty,  as  is  by  this  act  directed,  water  mills  for 
or  shall  let  remain  out  of  repair  any  such  bridge  or  bridees  for  the  failing  to  keep 

r  1  1  11  -111-  up  bridges. 

space  oi  ten  days,  unless  prevented  by  unavoidable  circumstances, 
shall  forfeit,  for  each  and  every  such  offence,  the  sum  of  twenty 
dollars  over  and  above  such  damage  as  may  be  sustained. 

20.  1784,  c.  227,  s.  14. 

21.  1784,  c.  227,  S.  13. 

22.  17S4,  C.  227,  s.  5. 

23.  1784,  c.  227,  s.  6. 

24.  1817,  c.  941,  s.  1. 

25.  1817,  c.  941,  s.  2. 


544  KOADS,    FERRIES,    ETC.  [ChAP.  CIV. 

County  courts       26.   It  shall  and  may  be  lawful  for  the  majority  of  the  justices  of 
the\iundin"^o^f  ^^^  courts,   through  whose  counties  run   large   water  courses  or 
toll  bridges,      crceks,  across  which,  from  the  rapidity  of  the  water  and  width  of 
the  stream,  it  may  be  too  burthensome  to  build  bridges  and  keep 
them  in  repair  by  a  tax  on  the  inhabitants,  if  they  deem  it  neces- 
sary, to  contract  with  builders  to   build  toll  bridges  or  expensive 
causeways,  for  each  of  which,  each  court  is  hereby  authorized  and 
required  to  lay  the  toll  to  be  paid  on  all  persons,  horses,  carriages 
and  cattle  passing  over  the  same:  Provic/et/,  that  such  toll  shall  be  gen- 
eral to  all  persons,  and  no  person  shall  be  exempt  therefrom.     And 
the  revenue  arising  therefrom  for  such  a  number  of  years,  as  the 
said  courts  may  agree  upon,  shall  be  granted  unto  the  builders  of 
said  bridges,  their  heirs  and  successors,  for  the  building  thereof, 
which  bridges,  being  built  under  the  direction  of  the  said  courts, 
and  the  revenue  arising  from  the  toll  thereof  so  granted,  the  said 
builder  or  builders,  his  or  their  heirs  or  successors,  shall  keep  in 
constant  repair  at  his  or  their  sole   expense,  and   shall  keep  good 
and  sufficient  hand  rails   across  the  same  ;  in  default  of  which,  on 
conviction,  they  are  hereby  declared  to  forfeit  all  right  and  title  to 
the  toll  allowed  by  the  court. 
County  courts       27.   The  justices  of  each  county  shall,  once  a  year,  or  oftener  if 
rates^oner-      necessary,  at  the  first  court  to  be  held  after  the  first  day  of  Janu- 
riage.  ary,  in  each  year,  rate  the  prices  of  such  ferries,  as  shall  be  kept 

within  their  respective  counties  :  And  any  ferry  keeper,  who  shall 
ask,  demand  or  receive  a  greater  price  for   ferriage,  than  shall  be 
rated  by  the  justices   according  to  the  directions  of  this  act,  shall 
forfeit  five  dollars  for  every  offence.     And  every  person,  who  lives 
at,  or  owns  a  public   ferry  in  this  State,  and  refuses  to  keep  up 
such   ferry,  at  the  rates  allowed  by  the  county  court,  shall  forfeit 
for  every  such  offence  the  sum  of  five  dollars. 
Owners  offer-      28.   In  all  cases,  where  the  proprietor  of  any  ferry  shall  prefer 
Tifb^'d^^^'^f  building  a  good   and   substantial  bridge  over  any  water  course,  in- 
their  ferries.     Stead  of  keeping  a  ferry,  he   shall    be    at  liberty  to   do  so,  under 
the   same    rights    and  in    the    same  manner,    by   which  the   ferry 
is  claimed  and  held,   and  under   the  same  rules,  regulations   and 
restrictions   as  other  toll   bridges  heretofore   established  by  law  : 
Provided  nevertheless,  that   no   more   toll   shall  be  demanded  for 
passing  any  bridge,   erected   in  consequence  of  this  act,  than  is 
granted   by  law  for   the   ferriage,  unless  by   agreement  with   the 
county  court,  who  are   hereby  authorized  to  grant   an  advance,  as 
far  as  twentyfive  per  cent.,  and  not  more.     Jlnd  provided  further , 
that  in  all  such  bridges,  the   proprietors  shall  erect  a  draw,  where 
any  water  course  is  frequently  and  commonly  used  by  sea  vessels, 
or  masted  boats  of  considerable  burthen. 
County  courts       29.   The  courts  of  each  and  every  county  shall  have  full  power 
may  compel      and  authority,  and  they  are  hereby  directed  and  required,  to  com- 

kSGDGrs  oi  iGr-  j  ^  *i  j  x.  > 

ries  and  own-    pel  all  persons,  that  now  do  or  shall  hereafter  be  appointed  to  keep 

ers  of  toll 

bond^&c*  ^^^       26.  1784,  c.  227,  s.  7.— 1817,  C.  939,  s.  2.— 1817,  c.  940,  s.  3. 

'       ■  27.  1779,  c.  10,  s.  8  and  9  of  Iredell's  Rev.— C.  160,  s.  2  of  the  New  Rev. 

28.  1806,  c.  706. 

29.  1784,  c.  227,  s.  15. 


Chap.  CIV.]        roads,  ferries,  etc.  545 

a  public  ferry,  or  who  shall  own  a  bridge  receiving  tolls,  with- 
in the  said  counties,  to  give  bond  with  good  and  sufficient 
security,  in  the  sum  of  one  thousand  dollars,  payable  to  the 
State  of  North  Carohna,  with  condition  that  he  or  they  shall 
and  will  constantly  find,  provide  and  keep  good  and  sufficient  boats  How  persons 
or  other  proper  crafts,  or  keep  such  bridges  in  good  repair,  as  the  "'J'^''^'^  "P^y 

111  1     ^     11  lie  11  1        proceed  to  re- 

case  may  be,  and  always  to  be  well  attended,  lor  travellers  or  other  cover  on  such 
persons,  their  horses,  carriages  and  effects,  over  any  river  or'^°^'^^- 
creek  ;  and  if  any  person  shall  receive  damage  by  any  ferryman  or 
keeper  of  a  toll  bridge  not  having  complied  with  the  condition  of 
his  bond,  the  person,  receiving  such  damage,  shall  and  may  bring 
an  action  of  debt  against  such  ferryman  or  bridge  keeper  on  such 
bond,  in  the  name  of  the  State,  and  recover  for  the  non-perform- 
ance of  the  said  condition  so  much  damages,  as  he,  she  or  they 
shall  appear  to  have  sustained,  and  thereupon  take  out  execution 
for  whatsoever  shall  be  so  recovered,  and  apply  the  same  to  his, 
her  or  their  own  use  ;  and  it  shall  and  may  be  lawful  for  any  per- 
son, detained  at  any  pubhc  ferry  by  reason  of  the  ferryman's  not 
■having  sufficient  boats  or  other  proper  crafts  and  hands,  or  by 
neglecting  to  do  his  duty,  by  a  warrant  from  a  justice  of  the  peace, 
to  recover  of  such  ferryman  the  sum  of  ten  dollars  for  every  such 
default  or  neglect :  Provided,  that  any  such  recovery  shall  not  be 
deemed  to  bar  any  action  for  personal  damages,  suffered  by  any 
person  or  persons,  by  reason  of  the  insufficiency  of  said  ferries  and 
boats  thereon,  and  bridges  and  causeways. 

30.  If  any  person  or  persons,  not  empowered  to  keep  ferry?  ^^"^'^y  °"  P^''- 

un  tj^i  r  x^^  sons  not  em- 

snall  pretend  to  keep  any  terry,  or  to  transport  any  person  or  per-  powered,  for 
sons  or  their  effects  for  pay,  within  ten  miles  of  any  ferry,  (being  keeping  a  ferry, 
on  the  same  river  or  water,)  which  is  already,  or  hereafter  shall  be  personTwithiif 
appointed,  such  person  or  persons,  so  pretending  to  keep  ferry,  or  ten  miles  of 
transporting  any  person  or  persons  or  their  effects,  shall  forfeit  and  pay.  ^"^ 
pay  the  sum  of  two  dollars,  for  every  such  offence,  to  the  nearest 
ferryman,  to  be  recovered  by  a  warrant  from  any  justice  of  the 
peace  :  Provided,  that  such  person  or  persons,  as  may  contract  for  pg^g^^s  con- 
riding  post,  or  for  carrying  the  mail  in  stages,  shall  be  authorized  tracting  to  car- 
lo keep  a  boat  and  to  employ  hands  for  the  sole  pm-pose  of  trans-  ^^  ^^^  ™*^^* 
porting  the  public  mail,  and  such  passengers-  as  may  travel  in  the 
stage  with  the  same,  across  any  ferry  or  ferries  without  let  or  hin- 
drance.    But  such  contractors  for  riding  post  or  for  carrying  the 
mail  by  stage,  shall  not  be  authorized  to  transport  any  other  passen- 
gers across,  at  public  ferries,  than  such  as  travel  by  the  stage,  and 
no  person  or  persons  shall  pretend  to  transport  any  other  passenger 
for  pay,  at  a  public  ferry,  unless  he  or  they  are  duly  authorized  so 
to  do,  by  the  court  of  the  county  in  which  the  ferry  may  be,  or  of 
the  county  from  which  the  passenger  may  be  carried,   under  the 
penalty  of  ten  dollars,  to  be  recovered  by  the  owner  of  the  ferry, 
to  his  own  use,  as  above  provided. 

31.  All  keepers  of  public  ferries  or  bridges  in  this  State,  where  Keepers  of  pub- 
the  ferriage  or  bridge  toll  is  above  five  cents  for  a  man  and  horse,  keep"p  a^° 

30.  1764,  c.  72,  S-  1.— 1787,  c.  273. 

31.  1767,  c.  83,  s.  1. 

VOL.   I.  69 


546  ROADS,    FERRIES,  ETC.  [ChAP.  CIV. 

house  of  en-  shall  be  obliged  to  furnish  all  travellers  with  entertainment,  at  tavern 
thekfories^*  rates,  and  shall  take  out  license  for  that  purpose  ;  and  if  any  keep- 
er of  any  such  public  ferry  or  bridge  shall  refuse  or  neglect  to  fur- 
nish such  entertainment,  or  to  take  out  such  license,  such  ferry  or 
bridge  keeper  shall  forfeit  and  pay,  for  each  offence,  the  sum  of 
twenty  dollars,  to  any  person  who  shall  sue  for  the  same. 
Penalty  for  32.   It  shall  not  be  lawful  for  any  person  to  tie  or  make  fast  any 

seunioaT^'  decked  vessel  to  any  of  the  float  bridges  of  this   State  ;  and  any 
bridge.  person,  violating  this  section  of  this  act,  shall  forfeit  and  pay  fifty 

dollars,    recoverable   before    any  jurisdiction    having    cognizance 
thereof,  the  one  half  to  the  use  of  the  person  suing  for  the  same, 
and  the  other  half  to  the  wardens  of  the  poor  in  the  county,  where 
such  bridge   is   situate  :  and  where  such  bridge  crosses  a  county 
line,  the  justices  of  either  county  shall  have  jurisdiction  under  this 
act,  and  the  one  half  shall  be  paid  to   the  wardens  of  the  poor  of 
the  county,  where  judgment  is  given  by  the  justice. 
In  what  cases        33.   If  any  person  shall  be  settled  upon  or  cultivating  any  land, 
courts^may       to  which  there  is  no  pubHc  road  leading,  and  no  way  to  get  to  and 
order  the  lay-    from  the  Same,  other  than  by  crossing  other  persons'  lands,  and  it 
ways.   °  shall  not  be  necessary  to  establish  a  public  road,  it  shall  be  lawful 

for  such  person  to  file  his  petition  in  the  county  court,  praying  for 
a  cart  or  wagon  way,  to  be  kept  open  across  another  person's  land, 
leading  to  some  pubhc  road,  ferry,  bridge  or  public  landing  ;  and 
Proceedings  for  "P°"  ^"^  making  it  appear,  to  the  satisfaction  of  the  court,  that  the 
such  purpose,  adverse  party  has  had  twenty  days  notice  of  such  his  intention,  the 
said  court,  seven  justices  being  present,  shall  hear  the  allegations 
set  forth  by  the  petitioner,  and  if  sufficient  reason  be  shewn,  it 
shall  be  the  duty  of  such  court  to  pass  an  order,  directing  the 
sheriff  to  summon  a  jury  of  twelve  freeholders  to  go  on  the  prem- 
ises, and  view  the  same,  and  lay  off  a  cart  way,  not  less  than  four- 
teen feet  wide,  and  assess  the  damages  the  owner  of  such  land  may 
sustain  thereby  ;  and  such  damages,  with  the  expense  of  making 
the  road,  shall  be  paid  by  the  petitioner,  and  the  way  shall  be  kept 
open  for  the  free  passage  of  persons  on  horseback,  carts  or  wagons. 
Provided,  that  if  the  notice  aforesaid  shall  not  have  been  given,  the 
justices  shall  cause  such  petition  to  be  filed  in  the  clerk's  office 
until  the  next  court,  when  they  shall  proceed  to  hear  and  deter- 
mine the  same. 
Persons  across  34.  Any  person,  across  whose  land,  such  cart  way  may  pass, 
whose  lands     gj^^]]  jjg  gj  liberty  to  erect  gates  or  bars   across  the   same  ;  and  if 

cartways  are  ^  ^  ,  j    v*  ^^  ** 

laid  out,  may  any  person  shall  leave  open,  break  down  or  otherwise  destroy  such 
erect  bars  or  gg^jg  qj.  \)^yq^  erected  as  aforesaid,  he  shall  on  conviction  thereof 
same.  forfeit  and  pay  two  dollars  for  such  offence,  for  the  use  of  the  per- 

son suing  for  the  same,  to  be  recovered  before  any  justice  of  the 
peace  for  the  county,  where  the  offence  may  be  committed. 
Cartways  to  be      35.   Any  cart  way,  laid  off  as  aforesaid,  for  and  at  the  request  of 
swis^to  pasF"^'  ^  petitioner  or  petitioners  for  the  use  aforesaid,  shall  be  free  for  the 

32.  1819,  c.  1017. 

33.  1798,  c.  508,  s.  1.— 1822,  c.  1139,  s.  I. 

34.  1798,  c.  503,  s.  1  and  2. 

35.  179^,  0.  508,  S.  3. 


Chap.  CIV.]        roads,  ferries,  etc.  547 

passage  of  any  person  or  persons  to  pass.  Provided,  that  this  act 
shall  not  be  construed,  so  as  to  exempt  any  such  petitioner  or  pe- 
titioners from  working  on  the  pubUc  roads,  to  which  the  court 
may  have  directed  them. 

36.  Either  party,  dissatisfied  with  the  judgment  of  the  county  jippeals  ai- 
court  in  any  case  arising;  under  the  thirtythird  section  of  this  act,  lo^®'^  from 

,     ,,  ,  •'      .    ,  °      ,  ,  ■;  r-        •  1  '  orders  to  lay 

shall  have  a  right  to  appeal  to  the  superior  court  oi   said   county,  off  cart  ways. 
under  the  same  rules   and  restrictions  as  in  other  cases  of  appeals. 

37.  The  several  courts  of  pleas  and  quarter  sessions  in  this  County  courts 
State,  a  majority  of  the  justices  of  the  county  being  present,  shall  thie^erection  of 
have  full  power  to  authorize,  in  the  manner  herein  prescribed,  the  gates  across 
erection  of  gates  across  public  roads  in  their  respective  counties.  ^^  ^°  '°^  ^' 

38.  Any  person,  desirous   to  erect  a  gate  across  a  public  road,  How  a  person 
may  file  his  petition  in  the  court  of  pleas  and   quarter  sessions  of  erecting  a°  gate 
the  county,  where  such  road  lies,  whereupon  the  court  shall  order  across  a  public 
that  publication  be  made  until  the  next  succeeding  court,  at  the  ceed'to  obtaio'' 
court  house  or  in  some  public  place,  that  application  has  been  made  ^J^  order  for 

to  the  court  to  erect  a  gate  across  a  public  road,  describing  the  place       P'^^pose. 

and  name  of  the  petitioner,  and  that  all  persons  interested  in  the 

convenient  travelling  or  transportation  on  said   road  have  leave  to 

appear  and  defend,  demur  or  plead  to  said  petition,  and  if  at  the 

next  succeeding  court,  it  shall  satisfactorily  appear  that  such  pub- 

hcation  has  been  made  as  aforesaid,  and  not  otherwise,  the  said 

court  may,  at  their   discretion,  a  majority  of  the  justices  being 

present,  authorize  the  petitioner,  at  his  or  her  cost,  to  erect  a  gate 

as  prayed  for  :  Provided  always,  that  the  petitioner,  or  party  de-  Appeal  allow- 

fendant  shall  have  the  right  of  appeal  as  in  other  cases  :  And  pro-  ^°- 

vided  further,  that  all   gates,  erected  under  the  authority  of  this  subject  to  tax. 

section,  shall  be  subject  to  the  same  taxes  as  are  imposed  by  law 

on  gates  across  public  roads. 

39.  All  forfeitures,  incurred  by  a  violation  of  any  of  the  pro- P'o^'f^itures, 
visions  of  this  act,  shall  be  recovered  by  action  of  debt  before  any  covere°d  and  m- 
jurisdiction  having  cognizance  of  the  same,  one  half  to  the  use  of  pli^d. 

the  prosecutor,  the  other  half  to  the  use  of  the  county  in  which 
the  offence  is  committed,  unless  the  same  shall  have  been  other- 
wise provided  for  by  this  act. 

36.  1822,  c.  1139,  s.   3. 

37.  1S34,  c.  16,  s.  1. 

33.   1834,  c.  16,  s.  2,  3  and  4. 

38.  1786,  c.  256,  s.  4. 


Note.  —  References  to  Adjudged  Cases. 

Sect.  1.     Carres.  Hairston,  1    Car.    Rep.   249.    Beard  jjs.  Long,  2  Car.   Rep.  69. 
Pipkin  vs.  Wynn,  2  Dev.  402. 

Sect.  2.     Little  vs.  May,  3  Hawks,  599. 
Sect.  3.     Harris  vs.  Coltraine,  3  Hawks,  312. 
Sect.  25.     MulhoUand  vs.  Brownrigg,  2  Hawks,  349. 


548 


SALARIES    AND   FEES. 


[Chap.  CV. 


CHAPTER  105. 


8AL.ARI£8    AND   FEES. 


AN  ACT  PRESCRIBING  THE  SALARIES  AND  FEES  OF  THE  SEVERAL 
OFFICERS  OF  THIS  STATE. 


4^ 


2. 
3. 

4. 

e. 

6. 

7. 


Section 

1.  Salaries  of  the  governor,  judges  of 
the  supreme  court,  secretary  of 
state,  treasurer,  comptroller,  private 
secretary  to  the  governor,  and  clerk 
in  the  treasury  department — When 
paid. 

Salary  of  the  adjutant  general. 

Salary  of  the  judges  of  the  superior 
courts. 

Salaries  of  the  attorney  general  and 
solicitors. 

Of  the  reporter  of  the  decisions  of 
the  supreme  court. 

Of  the  clerk  of  the  supreme  court 

Pay  of  the  councillors  of  state. 
8.  Of  the  clerk  and  doorkeeper  of  the 

council. 
'9.  Of  the  members  of  the  General  As- 
sembly. 

Of  the  clerks  and  officers  of  the  Gen- 
eral Assembly. 
'1 1 .  Pay  of  the  members  and  officers  of 
the  General  Assembly,  how  ascer- 
tained, certified  and  paid. 

12.  Fees  of  the  governor's  private  secre- 

tary. 

13.  Of  the  secretary  of  state. 

14.  Of  the  attorney  general  and  solici- 

tors for  the  State. 

15.  Of  the  county  solicitors. 

16.  Of  attorneys  at  law. 

17.  Of  clerks  of  the  county  courts. 

18.  Of  the  clerks  of  the  superior  court. 


10. 


Section 

19.  Clerks  to  have  no  fee  on  a  capias  in 

certain  cases. 

20.  In  certain    state    cases,   clerks  and 

sheriifs  to  have  only  half  fees. 

21.  Fees  of  sherifi's. 

22.  SheriSs    not  allowed    commissions 

upon  a  justice's  execution. 

23.  Clerks  of  the  superior  and  county 

courts  to  keep  a  copy  of  the  clerks' 
and  sherifis'  fees  posted  up  in  their 
offices. 

24.  Clerks  of  courts  may  issue  execution 

for  fees  in  certain  cases — Bill  of 
costs  to  be  annexed. 

25.  Fees  of  the  clerk  of  the   supreme 

court. 

26.  Of  clerk  and  masters  in  equity. 

27.  Compensation  of  county  trustees. 

28.  Fees  of  coroners. 

29.  Fees  of  constables. 

30.  Of  registers. 

31.  Of  entry  takers. 

32.  Of  county  surveyors. 

33.  Of  rangers. 

34.  Of  commissioners  of  affidavits. 

35.  Of  processioners. 

36.  Of  standard  keepers. 

37.  Of  jailers. 

38.  Of  inspectors. 

39.  Of  tobacco  pickers. 

40.  Fee  bills  to  be  made  out  in  dollars 

and  cents — Receipts  to  be  given  in 
the  same. 


I.  Be  It  enacted  by  the  General  Assembly  of  the  State  of  Mrth 

Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

folernor''^  '^'  t^^^  ^^'!  govemor  of  this  State  sliall  receive  an  annual  salary  of  two 

judges  of  the    thousand  dollars  ;  the  judges  of  the  supreme  court  shall  receive, 

Sa^'oT'  ®^^^'  ^"  """r^^  '^^^'^  °^  ^'''''  thousand  five  hundred  dollars  ;  the 
state,  treas-  Secretary  of  state,  besides  his  fees,  shall  receive  an  annual  salary 
rer7pr3'sec:°^^'§^'  hundred  dollars  ;  the  public  treasurer,  an  annual  salary  of 

hf^I^'oi^^'^  1.-1793   c.  403.-1817,  c.  956.-181S,   c.   962,  s.  1.-1821,  c.  1121. 
2^9   s!v!-lS2S;c.  5?  1799.-1806,  c.  702,  s.  1.-1827,  c.  1,  s.  19.-ll787,  c. 


Chap.  CV.]  salaries  and  fees.  549 

one  thousand  five  hundred  dollars  ;  the  comptroller  of  public  ac-  retary  to  the 
counts,  an  annual  salary  of  one  thousand  dollars  ;  the  private  sec-  fferk  b'^thT 
retary  to  the  governor,  besides  his   fees,  shall   receive  an  annual  treasury  de- 
salary  of  three  hundred  dollars;  and  the   clerk   or  clerks  of  the P'*'"*'^®'^''" 
treasury  department,  an  annual  salary  of  five  hundred  dollars.     All 
which  salaries  shall  be  paid  quarterly  ;  that  is,  on  the  first  day  of 
April,  first  day  of  July,  first  day  of  October,  and  the  first  day  of      ^"  '^'^' 
January,  in  each  and  every  year  ;  and  the  public  treasurer  is  here- 
by authorized  to  pay  said  officers,  on  warrants  from  the  governor, 
at  the  different  times  as  before  stated. 

2.  The  adjutant  general  of  the  State  shall  receive  an  annual  sal- Salary  of  the 
ary  of  two  hundred  dollars,  to  be  paid  semiannually  ;  which  salary  gj^l"'^"^  ^^"^" 
the  public  treasurer   is  authorized  to  pay,  upon  warrant  from  the 
governor. 

3.  The  judges   of  the  superior   comets  of  law  and  equity,  shall  Salary  of  the 
each  have  an  annual  salary  of  one  thousand  nine  hundred  and  fifty  iuplriorcourts. 
dollars,  in  full  compensation  for  all  judicial  duties,  which  are  now 

or  may  hereafter  be  assigned  to  them  by  the  General  Assembly, 
payable  semiannually  :  Provided  nevertheless,  that  if  any  of  the 
judges  aforesaid  shall  fail  to  produce  to  the  treasurer,  the  certificate 
or  certificates  of  any  of  the  clerks  of  the  several  superior  courts  of 
the  districts  assigned  them,  it  shall  be  the  duty  of  the  treasurer,  for 
any  certificate  they  shall  so  fail  to  produce,  to  deduct  one  hundred 
dollars. 

4.  The  attorney  general  of  the  State,  or  the  solicitor  who  may  at-  Salaries  of  the 
tend  in  his  place,  shall  receive  the  sum  of  one  hundred  dollars  for  g^^*J™n5  foUci- 
each  term  of  the  supreme  court,  which  he  shall  attend  ;  and  the  at-  tors. 
torney  general  and  solicitors  shall  receive,  besides  their  prescribed 

fees,  the  sum  of  twenty  dollars  for  each  term  of  the  superior  courts 
they  shall  attend,  to  be  paid  by  the  public  treasurer,  on  his  or  their 
presenting  a  certificate  of  such  attendance  from  the  clerks  of  the 
respective  courts,  and  if  they  attend  any  of  said  superior  courts 
more  than  one  week,  then  the  said  attorney  general  and  solicitors, 
so  attending,  shall  receive  twenty  dollars  more  for  the  second  week 
of  said  term,  to  be  paid  in  the  same  manner. 

5.  The  reporter  of  the  decisions  of  the  supreme  court  shall  re-  0/  the  reporter 
ceive,  as  a  compensation  for  the  services  required  of  him  by  law,  a  of  the  supreme 
salary  of  three  hundred  dollars,  which  shall  be  paid  to  him,  upon  sat-  '^°"'^'^- 
isfactory  evidence  to  the  treasurer,  that  he  has  had  printed  and  distri- 
buted, within  the  prescribed  time,  the  number  of  copies  of  the  reports 
reserved  for  the  use  of  the  State  ;  and  he  shall  also  be  authorized, 

on  his  own  account,  and  at  his  own  expense,  to  print,  publish  and 
vend,  and  to  obtain  under  this  grant  and  in  conformity  with  the  act 
of  congress,  the  copy  right  of  said  reports  of  cases  determined  by 
said  court. 

6.  The  clerk  of  the  supreme  court  shall,  besides  his  fees,  ve- .^^  ^^^ '^'^'"'^  °^ 

,  •        r       1  •  •  1  ■  1  the  supreme 

ceive  an  annual  compensation  tor  his  services,  not  exceeding  three  court. 
hundred   dollars,   to  be  estimated  by  the  judges  of  the  supreme 

2.  1812,  c.  82S,  s.  10. 

3.  Amendment. 

4.  1S18,  c.  973,  s.  1  and  2.— 1820,  c.  1038,  s.  1  and  2. 

5.  1822,  c.  1148,  s.  2.— 1831,  c.  39,  s.  2. 

6.  1803,  c.  742,  s.  3.— 1812,  c.  829.— 1813,  C.  963,  s.  5. 


550 


SALARIES   AND    FEES.  [ChAP.    CV. 


Pay  of  the 
councillors  of 
state. 


Of  the  clerk 
and  doorkeep- 
er of  the  coun- 
cil. 


Of  the  mem- 
bers of  the 
General  As- 
sembly. 


Of  the  clerks 
and  officers  of 
the  General 
Assembly. 


Pay  of  the 

members  and 
officers  of  the 


court,  and  to  be  paid  by  the  public  treasurer  upon  their  cer- 
tificate. 

7.  Every  councillor  of  state  shall  receive  the  sum  of  three  vl.)l- 
lars  per  day,  for  every  day  he  may  attend  on  public  business,  a  id 
three  dollars  for  every  thirty  miles  travelling  to  and  from  the  s.iiy 
of  Raleigh,  on  public  business  as  aforesaid. 

8.  The  clerk  of  the  council  shall  receive  two  dollars  for  each 
day  he  is  employed,  and  the  doorkeeper  of  the  council  shall  re- 
ceive eighty  cents  for  each  day  he  is  employed,  in  attending  on  the 
council  of  state. 

9.  The  speaker  of  the  senate,  and  the  speaker  of  the  house  of 
commons,  of  the  General  Assembly,  shall  each  be  entitled  to  re- 
ceive the  sum  of  four  dollars,  for  every  day  he  shall  attend  the 
senate  or  house  of  commons  ;  and  each  senator  and  member  of 
the  house  of  commons  shall  be  entitled  to  receive  three  dollars, 
for  every  day  he  shall  attend  the  senate  or  house  of  commons  ; 
and  the  speaker  and  every  member  of  the  senate  and  house  of 
commons  shall  also  be  allowed  his  necessary  ferriage,  and  the  sum 
of  three  dollars  for  every  thirty  miles  of  the  estimated  distance  of 
going  and  returning,  by  the  most  usual  road,  from  his  place  of 
residence  to  the  seat  of  government.  And  in  case  the  speaker  or 
any  member  of  the  senate  or  house  of  commons  shall  be  detained 
by  sickness,  on  his  journey  to  or  from  any  session,  or,  after  his 
arrival,  shall  be  unable  to  attend  the  senate  or  house  of  commons, 
he  shall  be  entitled  to  the  same  daily  allowance,  as  if  he  had  attend- 
ed regularly  in  his  place. 

10.  There  shall  be  allowed,  as  a  compensation  to  the  clerks  and 
officers  of  the  senate  and  house  of  commons  of  the  General  As- 
sembly, at  every  session  of  the  same,  the  following  sums  :  to  each 
principal  clerk,  the  sum  of  six  dollars,  for  his  daily  attendance 
and  services  ;  to  each  assistant  clerk,  the  sum  of  six  dollars,  for 
his  daily  attendance  and  services  ;  to  each  engrossing  clerk,  the 
sum  of  four  dollars,  for  his  daily  attendance  and  services  ;  and  to 
each  doorkeeper,  the  sum  of  three  dollars,  for  his  daily  attendance 
and  services  ;  and  there  shall  be  allowed,  annually,  to  each  of  the 
principal  clerks  of  both  houses,  the  sum  of  sixty  dollars,  as  a  full 
compensation  for  transcribing  the  journals  of  each  house  for  the 
public  printer,  and  for  taking  care  of  the  books,  papers  and  effects 
of  each  house,  and  all  other  incidental  services  attached  to  their 
offices  ;  and  the  principal  clerks,  assistant  clerks  and  doorkeepers 
of  both  houses,  and  also  the  engrossing  clerks,  shall  each  be 
allowed  the  sum  of  three  dollars  for  every  thirty  miles  of  the  esti- 
mated distance,  in  going  and  returning  by  the  most  usual  road  from 
the  seat  of  government  to  his  place  of  residence,  and  also  their 
ferriages. 

11.  The  compensation,  which  shall  be  due  to  the  members  and 
officers  of  the  senate,  shall  be    ascertained  by  the  principal  clerk, 


r.  1808,  c.  751—1793,  c.  403. 

8.  1793,  c.  403. 

9.  1820,  c.  1050,  s.  1  and  2. 

10.  1820,  c.  1050,  s.  3  and  4. 

11.  1820,  c.  1050,  s.  S. 


Chap.  CV.]  salaries  and  fees.  551 

and  certified  by  the  speaker  thereof,  and  the  same    shall  be  passed  General  As- 
as  public  accounts  ;  and  that,  which  shall  be  due  to  members  and  ascertalnecL^ 
officers  of  the  house  of  commons  and   to   the   engrossing   clerks,  certified  and 
shall  be  ascertained  by  the    principal  clerk  of  the  house  of  com-^^^ 
mons,  and  certified  by  the  speaker  thereof,  and  the  same  shall  be 
passed  as  public  accounts,  and  paid  by  the  treasurer. 

12.  The  private  secretary  of  the  governor  shall  be  allowed  the  Fees  of  the 
following  fees,  and    no  other  whatever,  to  be  paid  by  the  persons  vateTecre^tary' 
for  whom  the  services  are  rendered,  to  wit  :  for  a  judge's  com- 
mission, four  dollars  ;  for  an  attorney  general's  commission,  two 

dollars  ;  for  a  soUcitor's  commission,  two  dollars  ;  for  commis- 
sion for  senator  in  congress,  two  dollars  ;  for  commission  for  rep- 
resentative in  congress,  two  dollars  ;  for  notary  public's  commis- 
sion, two  dollars  ;  for  any  commission  for  a  place  of  profit,  two 
dollars  ;  for  a  testimonial,  one  dollar  ;  for  suspension  of  a  grant, 
seventyfive  cents  ;  for  affixing  the  seal  to  a  grant,  twentyfive  cents. 

13.  The  secretary  of  state  shall  be  allowed,  in  addition  to    his  Of  the  secreta- 
salary,  the  following  compensation  and  fees,  to  wit  :    for  furnish- "^^ 

ing  the  public  printer  with  copies  of  the  laws,  two  dollars  for  each 
law,  and  fifty  cents  for  each  resolution,  to  be  paid  by  the  public 
treasurer,  upon  the  warrant  of  the  governor  ;  for  copying  and 
certifying  a  will,  forty  cents  ;  for  correcting  an  error  in  a  patent, 
forty  cents  ;  for  copying  and  certifying  the  record  of  a  grant  or 
patent,  containing  not  more  than  six  hundred  and  forty  acres, 
forty  cents  ;  for  copying  and  certifying  a  grant  or  patent,  or  plot 
and  survey,  containing  more  than  six  hundred  and  forty  acres, 
fifty  cents  for  each  warrant  contained  in  such  grant,  patent,  or 
plot,  not  to  exceed  five  dollars  for  one  copy  ;  for  receiving  sur- 
veyor's return,  making  out,  recording  and  endorsing  grant,  fifty 
cents  ;  for  each  search,  ten  cents  ;  for  each  certificate,  ten  cents  ; 
for  recording  deeds  for  land  purchased  for  the  use  of  the  State, 
the  same  fees  that  registers  are  entitled  to  for  like  services  ;  for 
docketing  a  caveat,  filing  order  of  suspension  to  the  court,  and 
entering  and  filing  the  judgment  of  the  court  thereon,  fifty  cents  ; 
for  copying  any  entry  from  the  journals  of  the  assembly,  forty 
cents  ;  for  copying  and  certifying  the  laws  of  other  states,  twenty 
cents  for  each  copy  sheet,  to  be  paid  by  the  treasurer  for  all  copies 
furnished  for  the  use  of  the  State,  and  by  individuals  for  copies 
furnished  for  their  own  use.  And  in  all  cases  not  provided  for 
above,  the  secretary  of  state  shall  receive  the  same  fees,  for  copies 
of  records  from  his  office,  that  are  allowed  by  law  to  the  regis- 
ters of  the  several  counties  of  this  State. 

14.  The  attorney  general  and  solicitors  of  this  State   shall,  in  Of  the  attor- 

IV'  1  •'     -^       .  ,,  ,      ,  ,         ,  -,  •        ney  general  ana 

addition  to  the  compensation  allowed   them  by  the    State,  receive  solicitors  for  the 
the  following  fees,  and  no  other,  to  wit  :   for    each   and  every   in-  State. 
dictment  for  murder,  perjury,  forgery  and  burglary,  which  they  or 
either  of  them  may  have   occasion  to   prosecute  on  behalf  of   the 
State,  they  and  each  of  them  shall  receive  the  sum  of  ten  dollars 

12.  1799,  c.  535,  s.  3.— 1506,  c.  702,  s.  1. 

13.  1821,  c.  1121,  s.  2.— 1782,  c.  179,  s-  2.— 1793,  c.  403.-1799,0.  535,  s-  I.— 1832,  c. 
15.— 1834,  c.  23.— 1S19,  c.  1020.— 1823,  c.  1193,  s.  2.— 1812,  c.  838,  s.  3. 

14.  1820,  c.  1038,  s  3.— 1818,  c  973.  s.  2,  amended- 


552 


SALARIES    AND    FEES. 


[Chap.  CV 


Of  the  county 
solicitors. 


Of  attorneys 
at  law. 


Of  clerks  of 
the  county 
courts. 


upon  the  conviction  of  the  defendant,  to  be  paid  by  the  party 
convicted  ;  for  each  and  every  indictment  for  grand  or  petit  larce- 
ny, arson,  frauds,  deceits,  and  maim,  the  sum  of  five  dollars,  to  be 
paid  as  aforesaid  ;  and  for  all  other  offences  whatsoever,  the  sum 
of  three  dollars  to  be  paid  as  aforesaid,  and  in  no  other  manner 
whatsoever,  except  in  cases  of  inferior  offences,  where  the  court 
shall  be  of  opinion  that  the  prosecution  is  frivolous  or  malicious, 
and  may  think  proper  to  order  that  the  prosecutor  shall  pay  the 
costs  :  Provided  nevertheless,  that  no  larger  fee  than  ten  dollars 
shall  be  taxed  for  any  attorney  general  or  solicitor,  in  any  indict- 
ment against  the  justices  of  the  peace  of  any  county,  as  justices, 
when  there  are  more  than  three  justices  who  are  found  guilty. 

15.  The  county  solicitor  of  each  county  shall  not  be  entitled  to 
receive  any  fees  in  any  case  whatever,  unless  on  conviction  of  the 
defendants  of  the  crimes  set  forth  in  the  bills  of  indictment  respec- 
tively ;  and  in  all  cases  of  conviction,  the  said  solicitors  shall  re- 
ceive the  sum  of  four  dollars,  for  each  defendant  convicted,  from 
said  defendant,  and  in  no  other  way  whatever. 

16.  All  fees  to  be  taken  by  attorneys,  in  any  suits  in  any  of  the 
several  courts  of  law  and  equity  established  in  this  State,  shall  be 
as  follows,  to  wit :  in  any  suit  in  equity,  the  sum  of  twenty  dol- 
lars ;  in  any  suit  in  any  of  the  superior  or  county  courts,  where  the 
title  of  lands  shall  come  in  question,  the  sum  of  ten  dollars  ;  in  all 
other  suits  originally  commenced  in  any  of  the  said  courts  on  the 
law  side,  the  sum  of  four  dollars  ;  in  all  appeals  from  any  other 
court  to  the  said  superior  courts,  the  sum  of  four  dollars  ;  in  every 
appeal  from  the  judgment  of  a  justice  of  the  peace  to  the  said 
county  courts,  the  sum  of  two  dollars  :  Provided  always,  that  on 
any  petition  for  dower,  a  larger  fee  than  four  dollars  shall  not  be 
taxed  :  And  provided  further,  that  whenever  a  court  shall  make  an 
order  of  sale  of  lands,  levied  on  by  a  constable  or  other  officer,  in 
pursuance  of  an  execution  issued  by  a  justice  of  the  peace,  and  in 
all  cases  where  any  bond  shall  be  taken  and  returned,  under  the 
act  for  the  relief  of  insolvent  debtors,  to  the  court  of  pleas  and 
quarter  sessions,  except  in  cases  where  an  issue  shall  be  made  up, 
no  attorney's  fee  shall  be  taxed  by  the  clerk  on  any  such  order  or 
scire  facias  ;  or  against  any  such  insolvent  and  his  sureties. 

17.  The  clerks  of  the  several  courts  of  pleas  and  quarter  ses- 
sions in  each  and  every  county  of  this  State  shall  receive  the  fol- 
lowing fees,  and  no  other,  viz  :  for  every  leading  process  returned 
to  the  first  court,  including  all  services,  together  with  dismission  or 
final  judgment,  where  either  happens  at  the  return  court,  one  dol- 
lar ;  for  every  indictment,  sixty  cents  ;  for  each  recognizance, 
twenty  cents  ;  for  every  reference,  or  continuance  of  any  cause, 
thirty  cents  ;  for  every  judgment  entered  after  the  return  court, 
seventyfive  cents  ;  for  every  subpoena,  provided  the  party  inserts 
no  more  than  four  witnesses  in  the  same,  fifteen  cents  ;  for  every 
execution,  or  order  of  sale,  thirty  five  cents  ;  for  every  scire  facias^ 


15.  1818,  c.  965. 

16.  17S6,  c.  2S3,  s.  4.— 1806,  c.  693,  s.  16.— 1323,  c.  25,  s.  2.— 1830,  C.  1,  s.  6.— IS34, 
c.  S,  s.  1. 

17.  1830,  c  1,  s.  1,-1828,  c.  8,  s.  7.— 1829,  c.  19,  s.  2. 


Chap.  CV.]         salaries  and  fees.  553 

sixty  cents  :  Provided,  that  when,  at  any  term  of  a  court,  there 
shall  be  several  judgments  obtained  against  an  administrator  or  an 
executor,  with  an  admission  or  finding,  that  said  executor  or  ad- 
ministrator has  not  assets  hable  to  the  judgments,  and  the  plaintiffs 
shall  pray  for  writs  of  scire  facias  against  the  heirs  or  devisees  of 
the  testator  or  intestate,  the  clerk,  for  issuing  such  scire  facias, 
shall  be  entitled  to  charge  but  thirty  cents.  For  every  copy  of  a 
record,  five  cents  for  each  copy  sheet  of  ninety  words,  not  ex- 
ceeding five  copy  sheets,  and  three  cents  for  each  copy  sheet  after 
after  five  :  Provided,  that  the  total  amount  of  fees  charged  for  any 
one  record  shall  not  exceed  five  dollars.  For  every  order  or  rule 
foreign  to  the  cause,  with  a  copy  of  the  same,  if  required,  twenty 
cents.  For  a  copy  of  a  will,  five  cents  for  each  copy  sheet  of  ninety 
words  not  exceeding  five  copy  sheets,  and  three  cents  for  each  copy 
sheet  after  five  :  Provided,  that  the  total  amount  of  fees,  charged  for 
the  copy  of  any  will,  shall  in  no  case  exceed  five  dollars.  For  prov- 
ing and  recording  at  length,  in  bound  books  kept  for  that  purpose, 
and  filing,  an  inventory,  account  of  sales  or  account  current,  exhib- 
ited by  an  executor,  administrator  or  guardian,  or  for  search  and 
certificate  of  the  amount  thereof,  if  the  estate  be  under  two  hundred 
dollars,  the  clerk  shall  be  entitled  to  receive  for  his  fee  twenty 
cents  ;  if  above  two  hundred  and  under  one  thousand  dollars,  forty 
cents  ;  if  above  one  thousand,  seventyfive  cents,  and  no  more. 
For  entering  on  the  minutes  the  probate  of  any  will,  qualifying 
executors,  making  certificates,  and  recording  the  will,  in  a  bound 
book  kept  for  that  purpose,  eighty  cents  ;  for  granting  administration, 
taking  bond,  and  other  services  thereon,  eighty  cents;  for  every  mar- 
riage hcense  and  bond,  seventyfive  cents;  for  every  search  of  record 
out  of  court,  ten  cents  ;  for  proving  or  entering  the  acknowledgment 
of  the  conveyance  of  lands  or  other  estate,  and  certifying  the  same 
with  order  of  registration,  and  examination  of  a /erne  covert  without 
commission,  twenty  cents  ;  for  proving  or  taking  acknowledgment 
of  a  deed,  or  power  of  attorney,  and  certifying  the  same,  including 
order  of  registration,  twenty  cents  ;  for  every  commission  to  exa- 
mine a  feme  co«;eri,  twentyfive  cents  ;  for  every  commission  to  take 
testimony,  twentyfive  cents  ;  for  every  guardian  and  other  bond 
taken  in  court,  sixty  cents  ;  for  every  indenture  for  binding  ap- 
prentices, sixty  cents  ;  for  every  special  verdict,  or  demurrer,  or 
motion  in  arrest  of  judgment,  thirty  cents  ;  for  every  writ  of  error, 
or  appeal,  with  a  transcript  of  record,  one  dollar  ;  for  every  certi- 
ficate of  witnesses'  or  jurors'  attendance,  ten  cents  ;  for  affixing 
the  seal  of  office  and  writing  the  necessary  certificate  on  any  in- 
strument of  writing,  requiring  the  same,  twentyfive  cents  ;  for 
every  certificate  without  the  seal  of  office,  and  when  the  same  is 
not  otherwise  directed  to  be  paid,  twenty  cents  ;  for  recording  a 
mark  or  brand,  and  giving  a  certificate  thereof,  ten  cents  ;  for  is- 
suing a  warrant,  on  entry  of  land,  by  order  of  court,  forty  cents  ; 
for  enrolling  divisions  of  estates,  for  each  lot,  twenty  cents  ;  for 
taking  and  recording  every  prosecution  bond,  forty  cents  ;  for  ev- 
ery certificate  of  tavern  license  and  bond,  with  a  copy  of  rates,  one 
dollar  ;  for  taking  an  account,  such  sum  as  the  court  may  allow, 
VOL.   I.  70 


554  SALARIES    AND    FEES.  [ChAP.  CV. 

not  exceeding  fifty  dollars  ;  for  every  subpoena,  founded  on  a  peti- 
tion, fifty  cents  ;  for  every  copy  of  a  petition,  by  the  copy  sheet, 
ten  cents  ;  for  every  writ,  other  than  leading  process  or  subpoena 
for  witnesses,  seventyfive  cents  ;  for  every  order  of  court,  author- 
izing the  sheriff"  to  issue  a  license  to  retailers,  eighty  cents  ;  for 
correcting  an  error  in  a  patent,  forty  cents  ;  for  recording  proces- 
sioners'  certificate,  twenty  cents  ;  f^  every  search  of  entry  taker's 
books,  ten  cents  ;  for  every  copy  df  location  from  entry  taker's 
books,  ten  cents  ;  for  docketing  constables'  levies,  including  all 
services  in  court,  one  dollar  ;  for  filing  insolvent's  schedule  bond, 
and  all  other  services  in  court,  without  trial  by  jury,  one  dollar  ; 
for  trial  of  issue  on  such  schedule  bond,  seventyfive  cents  ;  and  the 
creditors,  at  whose  instance  the  issue  is  made  up,  shall  be  bound 
to  pay  the  taxed  costs  of  the  issue,  if  the  defendant  be  discharged 
by  the  court ;  for  declaration  of  a  foreigner  wishing  naturalization, 
copy  and  seal,  one  dollar  and  fifty  cents  ;  for  final  entry  of  natural- 
ization, copy  of  the  same  and  seal,  one  dollar  and  fifty  cents  ;  for 
docketing  appeals,  and  entry  of  plea  or  default,  eighty  cents  ;  for 
every  guardian  notice,  for  renewal  of  bonds  or  settlement  of  ac- 
counts, sixty  cents  ;  for  recording  the  decree  of  the  court,  upon  a 
petition  filed  for  the  legitimation  of  a  bastard  child,  one  dollar. 
Of  the  clerks  18.  The  clerks  of  the  superior  courts  of  law  of  this  State, 
courts. ^'^^^'^"'^  shall  for  hke  services,  receive   the  same  fees   as   are  by  this  act 

allowed  the  clerks  of  the  county  courts,  and  no  other. 

Clerks  to  have       19.   No  clerk  of  any  county  or  superior  court  shall  be  entitled  to 

capias  in  cer-    charge  any  fee  for  any  capias  ad  respondendum,  issued  during  term 


tain  cases.  time,  returnable  instanter,  unless  such  capias  be  executed. 
In  certain  state  20.  In  all  State  cases,  where  there  shall  be  a  nolle  prosequi 
and  sheriffs  to  entered,  or  the  defendant  shall  be  acquitted,  or  convicted  and  un- 
have  only  half  able  to  pay  the  costs,  and  the  court  shall  not  order  the  prosecutor 
to  pay  costs,  the  counties  shall  pay  the  clerks  and  sheriffs  half  their 
lawful  fees  only,  except  in  capital  or  clergiable  felonies,  or  prose- 
cutions for  forgery,  perjury  and  conspiracy. 
Peesof  sher-  21.  The  several  sheriffs  in  this  State  shall  receive  the  following 
fees,  and  no  other,  viz  :  for  every  arrest,  seventyfive  cents  ;  for 
every  bail  or  replevin  bond,  twentyfive  cents  ;  for  service  of  a 
copy  of  declaration  in  ejectment,  sixty  cents  ;  for  service  of  sub- 
poena, with  a  copy  of  petition,  sixty  cents  ;  for  serving  a  copy  of 
declaration,  ten  cents  ;  for  services  of  every  scire  facias,  sixty 
cents — Provided,  that  when  at  any  term  of  a  court  there  shall  be 
several  judgments  obtained  against  an  administrator  or  an  executor, 
with  an  admission  or  finding  that  said  administrator  or  executor 
has  not  assets,  liable  to  the  judgments,  and  the  plaintiffs  shall  pray 
for  writs  of  scire  facias  against  the  heirs  or  devisees  of  the  testator 
or  intestate,  the  officer  for  serving  each  scire  facias,  shall  be 
entitled  to  charge  but  thirty  cents  ;  for  service  of  notice  to  arbi- 
trators, referees  and  commissioners,  to  take  an  account,  thirty 
cents  ;  for  every  attachment  levied,  seventyfive  cents,  and  if 
further  trouble  by  moving  of  goods,  to  be  taxed  by  the  court  ;  for 

IS.  1830,  c.  1,  s.  2. 

19.  1S30,  c.  1,  s.  6. 

20.  1830.  c.  1,  s.  7. 

21.  1830,  c.  1,  s.  9  and  14.— 1828,  c.  S,  s.  7.— 1S27,  c.  20,  s.  5.— 1334,  c.  9,  s.  1  and  2. 


Chap.  CV.]         salaries  and  fees. 

every  replevy  bond  upon   such  attachment,  twentyfive   cents  ;  for 
every  subpcEna  served,  for  each  person  named  therein,  thirty  cents  ; 
for  putting  a  person  in  the  stocks  or  pillory,  fifty  cents  ;  for  every 
commitment,  thirty  cents  ;  for  every  release,  thirty  cents  ;  for  sum- 
moning commissioners  to  divide  real  estate,  and  for  qualifying  them, 
to  be  paid  in  equal  proportions  by  the  claimants,  thirty  cents  each; 
the  fees  for  keeping  each  crimi-^jfil  in  jail,  per  day,  to  be  allowed  and 
fixed  by  each  county  court,  as  now  directed  by  law  ;  for  every  no- 
tice to  take  depositions,  thirty  cents  ;  for  every  notice,  that  may  be 
required  to  be  given  in  any  cause,  motion  or  proceeding,  either  at 
law  or  equity,  as  well  for  commencing  as   for  proceeding  in  the 
same,  until  the  same  be  ended,  the  same  fee  as  for  serving  a  sub- 
poena ;  for  summoning,  empanelling,  and   attending  on  every  jury, 
in  every  cause  in  court,  and  calling  the  same,  ten  cents  ;  where  a 
special  venire  shall  issue,  by  order  of  court,  for  summoning  each 
juror,  twenty  cents  ;  for  serving  and  attending  on  any  person  on  a 
habeas  corpus  per  day,  one  dollar  and  fifty  cents  ;  for  selhng  the 
estate  of  an  intestate,  to   be  allowed  by  the  court  not  exceeding 
two  and  a  half  per  cent.  ;  for  executing  a  warrant  of  distress,  or  an 
execution  against  the  body,  two  and  a  half  per  cent.  ;  for  all  moneys 
collected  by  him  by  virtue  of  any  levy,  two  and  a  half  per  centum, 
and  the  like  commissions  for  all  moneys  that  may  be  paid  the  plain- 
tiff by  the  defendant,  while  such  precept  is  in  the  hands  of  such 
sheriff ;  for  every  writ  of  possession,  one  dollar  ;  for  every  levy, 
by  virtue  of  an   execution,  seventyfive   cents  ;  for  the  execution 
and   decent  burial   of  any  criminal,  ten  dollars  ;  for  services   of 
equity  process  and  incidental  thereto,  the  same  fees  as  for  the  hke 
services  at  law  ;  for  maintaining  any  slave  or  other  property,  or 
any  criminal  seized  by  virtue  of  any  legal   precept,  such   sum  as 
may  be  fixed  by  the  county  court  in  each  county  in  this   State  ; 
for  apprehending  any  criminal,  one  dollar  ;  for  conveying  any  crim- 
inal to  that  jail,  where  such  criminal  ought  to  be   conveyed,  ten 
cents    per   mile,  and  five  cents  for  each  person  composing  the 
guard,  provided  the  number  shall  not  exceed  four  persons,  and  if 
more  than  four  shall  be   absolutely  necessary,  two  cents  per  mile 
for  each  of  said  guard  ;  for  each  day  the  sheriff  shall  maintain  said 
prisoner,  he  shall  receive  fifty  cents — the  expense  shall   be  paid 
by  the  respective  counties,  if  such  prisoner  shall  not  be  hable  or 
able  to  pay  the  same  ;  for  summoning  each  guardian  to  renew  his 
bond,  or  settle  his  accounts,  sixty  cents,  to  be  paid  by  said  guar- 
dian ;  for  executing   a  capias  ad  satisfaciendum,  issued   from  and 
returnable  to  a  court  of  record  beyond  the  sheriff's  own  county, 
and  carrying  the  body  of  the  defendant  and  confining  him  in   the 
jail  of  such  county,  three  dollars  for   every  thirty  miles  travelling 
to  and   returning   from  said  jail  to   his  own  home  ;  and  it  shall  be 
the  duty  of  the  sheriff  to  set  forth  in  his  return,  upon  the  writ  of 
capias  ad  satisfaciendum,  the   distance  from  his  residence  to  the 
jail,  wherein   he  may  have  confined  the  defendant,  the  truth   of 
which  return  shall  be  verified,  by  oath  or  affirmation,  before  the 
clerk,  and  his  said  fee  shall  be  taxed  and  collected  as  his  other 
fees. 


555 


556  SALARIES    AND   FEES.  [ChAP.  CV. 

Sheriffs  not  al-  22.  No  sheriff  of  any  county  in  this  State  shall  charge  a  com- 
sicms  upon^E^^*" ''^^^^^o"'  ^^  any  moneys  collected  on  an  execution  issued  by  a  jus- 
justice's  execu-tice  of  the  peace,  nor  any  other  fees  than  those  allowed  by  law  for 
^^°^' '  similar  services. 

Clerks  of  the  23.  It  shall  be  the  duty  of  the  clerks  of  superior  and  county 
superior  and  courts  to  keep  a  copy  of  this  act,  in  relation  to  the  fees  of  clerks 
toTeep'^a'copy  ^"d  sheriffs,  posted  up  in  their  respective  offices,  and  in  the  court 
of  the  clerks,  housc,  in  some  conspicuous  place,  during  the  sitting  of  each  court, 
fees  posted  up  Under  a  penalty  of  fifty  dollars,  to  be  recovered  before  any  justice 
in  theii-  offices,  of  the  peace,  by  any  person  suing  for  the  same. 

■  24.   It  shall  be  lawful  for  the  clerks  of  the  superior  and  county 

courts  may  is-  courts,  where  suits  are  determined,  and  fees  not  paid  by  the  party 
sueexecution    from  whom  they  are  due,  to  make  out  executions,  directed  to  the 
tain  cases.     '  sheriff  of  any  county  in  this   State,  and  the  said  sheriff  shall  levy 
Bill  of  costs  to  the  same  as  in  other   cases,  and    to   the  said  execution  shall   be 
be  annexed,      annexed  a  copy  of  the  bill  of  costs  of  the  fees,  on  which  such  exe- 
cution shall  issue,  written  in  words  at  length,  without  any  abbrevia- 
tion whatsoever  ;  and  all  executions,   issuing  without  the  copy  of 
such  bill  of  costs  annexed,  shall  be  deemed  illegal,  and  no  sheriff 
shall  serve  or  execute  the  same. 
^f^k°f  th^  25.   The  clerk  of  the  supreme  court  shall,   in  addition  to   his 

supreme  court,  salary,  receive  the  following  compensation  and  fees,  to  wit :  for 
recording  the  papers  and  proceedings,  in  the  causes  decided  in  the 
supreme  court,  which  are  required  by  law  to  be  recorded,   such 
compensation  as  may  be  estimated  by  the  judges  of  the  said  court 
at  each  term  thereof,  not  to  exceed  thirty  cents  for  each  page  re- 
corded, to  be  paid  by  the  treasurer,  on  the  certificate  of  the  judges  ; 
for  entering  an  appeal,  or  removal  of  any  equity  cause,  one  dollar  ; 
and  the  same  fees  as  are  allowed  clerks  and  masters  in  equity  for 
similar  services  in  all   other  matters   relating  to  causes  in  equity  ; 
for   entering  an  appeal  in  a  cause  at  law,  one  dollar  ;  for  every 
continuance,  thirty  cents  ;  for  every  scire  facias,  eighty  cents  ;  for 
every  certiorari,  eighty  cents  ;  for  every  determination,  one  dollar 
and  eighty  cents  ;  for  every  certificate,  sixty  cents  ;  for  every  fieri 
facias  or  other  execution,   fifty  cents  ;  for   every  seal,  twentyfive 
cents  ;  for  every  transcript,  or  any  copy  of  a  record,  twenty  cents 
for  each  copy  sheet. 
Of  clerk  and         26.   The  clerks  and  masters  of  the  several  courts  of  equity  in 
masters  in        this  State  shall  receive  the  following  fees,  and  no  others,  to  wit : 
equi  y-  Yor  a  report  on  an  answer,   thirty  cents  ;  for  a  report  on  a  plea 

and  answer,  forty  cents  ;  for  a  report  on  a  demurrer  and  answer, 
forty  cents  ;  for  an  affidavit  to  an  answer,  fifteen  cents  ;  for  an 
affidavit  to  a  bill,  fifteen  cents  ;  for  a  separate  affidavit,  twenty 
cents  ;  for  copying  a  report  by  the  office  copy  sheet,  twenty  cents  ; 
for  a  report,  stating  an  account,  to  be  allowed  by  the  court,  not 
exceeding  fifty  dollars  ;  for  copies  of  proceedings  and  exemplifica- 
tion, by  the  copy  sheet,  twenty  cents  ;  for  taking  a  bond,  fifteen 

22.  1830,  c.  1,  s.  10. 

23.  1830,  c.  1,  s.  15. 

24.  1784,  c.  223,  s.  8. 

25.  1812,  c.  829,  s.  1.— 1831,  c.  20,  s.  1,  amended. 

26.  1787,  c.  278,  s.  3.— 1793,  c.  389,  S.  7.— 1793,  c.  403.— Resolutions  of  1792. 


Chap.  CV.]  salaries  and  fees.  557 

cents  ;  for  every  rule  given  for  service,  twentyfive  cents  ;  for  every 
rule  not  for  service,  twelve  and  a  half  cents  ;  for  every  subpoena, 
writ,  or  other  process,  one  dollar  ;  for  every  dedimus  or  commis- 
sion, fiftythree  cents  ;  for  every  injunction,  one  dollar  ;  for  draw- 
ing a  decree,  by  the  copy  sheet,  forty  cents  ;  for  enrolling  a  bill 
or  answer,  by  the  copy  sheet,  twenty  cents  ;  for  entering  a  plea 
or  demurrer,  twenty  cents  ;  for  recording  depositions  to  perpetuate 
testimony,  by  the  copy  sheet,  twenty  cents  ;  for  every  dismission, 
twenty  cents  ;  for  every  search,  ten  cents  ;  for  taking  security  on 
a  leading  process,  twenty  cents  ;  for  recording  such  bond,  twenty 
cents  ;  for  affixing  the  seal  to  any  writing  requiring  it,  twentyfive 
cents. 

27.  The  county  trustees  of  the  several  counties  in  this    State  Compensation 
shall  receive,  as  a  compensation  in  full  for  all  services  required  of  °^  county  trus- 
them  by  law,  such  a  per  centum  upon  the  amount  of  their  receipts 

and  disbursements,  as  the  county  courts,  a  majority  of  the  justices 

■  being  present,  shall  deem   adequate   and  proper  :   Provided,  that 

such  allowance  shall  not  exceed  six  per  centum  on  such  amounts. 

28.  The   several  coroners   of  each  county  in  this  State  shall  pees  of  cor- 
receive  the  following  fees,  and  no  others,  to  wit :  for  attending  on  oners, 
every  inquest,  two  dollars  and  forty  cents,  to  be  paid  by  the  county 

trustee  out  of  the  county  funds  ;  for  decently  interring  the  body  of  coycnari  l7x^,i^i^* 
any  white  man  or  free  person  of  color,  over  whom  he  has  holden  >*  ^<;t  i^-  ^A  ^f- 
an  inquest,  such  sum  as  the  county  court,  seven  justices  being 
present,  may  order,  not  to  exceed  ten  dollars,  to  be  paid  by  the 
county  trustee — Provided,  the  friends  of  the  deceased  shall  refuse 
or  neglect,  to  inter  the  said  body — which  said  sum,  so  allowed 
and  paid  said  coroner,  shall  be  charged  against  the  estate  of  the 
said  deceased,  which  the  county  trustee  shall  use  all  lawful  ways 
and  means  to  recover  ;  for  decently  interring  the  body  of  any 
slave,  over  whom  he  has  holden  an  inquest,  the  same  sum,  to  be 
allowed  and  paid  as  prescribed  in  the  preceding  clause — Provided, 
the  master  or  owner  of  such  slave  shall  refuse  or  neglect  to  inter  the 
body  of  such  slave — which  sum  such  master  or  owner  shall  pay 
back  to  said  trustee,  who  is  authorized  to  warrant  for  and  recover 
the  same  ;  for  discharging  the  duties  of  sheriff",  in  the  cases  pre- 
scribed by  law,  the  same  fees  as  the  sheriff"  would  be  entitled  to 
for  performing  the  like  services. 

29.  The  constables  in  each  and  every  county  of  this  State  shall  Fees  of  con- 
receive  the  following  and  no  other  or  greater  fees,  to  wit  :  for  ev-^''^^^^'"" 
ery  day's  attendance  on  court,  when  summoned,  eighty  cents  ;  for 
whipping    a    negro,  by   order   of  court  or    of  any   justice   of  the 

peace,  thirty  cents  ;  for  serving  every  warrant,  for  each  person 
named  therein,  forty  cents  ;  for  summoning  every  witness,  twenty 
cents  ;  for  every  execution,  forty  cents  ;  for  every  attachment 
levied,  fifty  cents  ;  for  every  bail  bond,  ten  cents  ;  for  serving 
notice  on  bail,  forty  cents  ;  for  serving  every  notice,  that  may  be 
required  by  law  to  be  given  for  commencing  and  prosecuting  any 
cause,  before  any  justice  of  the  peace,  out  of  court,  thirty   cents. 

27.  1777,  c.  129,  s.  4. 

28.  1784,  c.  223,  s.  7.-1803,  c.  644.— 1826,  c.  19,  s.  1. 

29.  1734,  c.  22.5,  s.  5.— 1794,  c.  414,  s.  4  and  22.-1753,  c.  403.— 1827,  c  20,  s.  5. 


558 


SALARIES    AND    FEES. 


[Chap.  CV. 


Of  registers. 


Of  entry 
takers. 


Of  county  sur- 
veyors. 


Of  rangers. 


30.  The  register  in  each  and  every  county  shall  receive  the 
following  fees  and  no  other,  to  wit :  for  registering  each  deed  or 
grant,  containing  one  tract  of  land,  including  the  certificate,  not 
less  than  forty  cents,  nor  more  than  one  hundred  cents  ;  if  the 
deed  contain  two  or  more  tracts,  not  less  than  forty  cents,  nor 
more  than  one  hundred  cents  for  the  first  tract,  and  not  less  than 
ten  nor  more  than  twenty  cents,  for  each  and  every  other,  and  the 
like  fees  for  copies  ;  for  registering  the  acknowledgment  and  cer- 
tificate of  -a.  feme  covert,  in  the  conveyance  of  lands  or  other  estate, 
an  additional  fee  of  twentyfive  cents,  and  the  like  fees  for  copies  ; 
for  registering  divisions  of  lands,  for  each  lot  or  dividend  therein 
described,  not  less  than  ten  cents,  nor  more  than  twenty  cents,  and 
the  same  fees  for  copies  ;  for  registering  copies  of  rectified  errors 
in  patents  or  grants,  not  less  than  forty  cents,  nor  more  than  one 
hundred  cents  ;  for  registering  all  other  instruments  of  writing, 
for  each  instrument,  not  less  than  forty  cents,  nor  more  than  one 
hundred  cents  ;  for  every  search,  ten  cents  ;  and  it  shall  be  in  the 
power  of  any  county  court,  (a  majority  of  the  justices  being  pre- 
sent, and  unanimously  assenting  to  it)  to  estabUsh  and  regulate  the 
fees  of  the  register  in  such  county,  within  the  hmits  above  pre- 
scribed, and  when  the  said  fees  are  once  so  established  they  shall 
not  be  altered  by  the  court  in  one  year.  And  when  the  county 
court  does  not  establish  the  said  fees,  as  aforesaid,  then  the  fees  of 
said  register  shall  be  at  the  minimum  rates  herein  prescribed. 

31.  The  entry  takers  in  each  and  every  county  shall  receive  the 
following  fees,  and  no  other,  to  wit  :  for  every  entry,  including  all 
services,  forty  cents  ;  for  issuing  each  duplicate  warrant,  when 
thereto  required,  twentyfive  cents. 

32.  The  surveyors,  appointed  by  the  several  county  courts  to 
survey  any  lands,  the  boundaries  of  which  may  come  in  question 
in  any  suit  depending  therein,  or  called  upon  by  the  commission- 
ers to  assist  in  surveying  and  dividing  the  lands  of  intestates  or 
others,  held  in  common,  shall  receive  the  following  fees  and  no 
other,  to  wit  :  for  every  survey  on  an  entry  containing  three  hun- 
dred acres,  or  less,  one  dollar  and  sixty  cents  ;  and  for  every  hun- 
dred more  than  that  quantity,  forty  cents  ;  for  surveying  lands  in 
dispute,  by  order  of  court,  travelling  to  and  from  the  place,  and 
performing  the  duty,  per  day,  two  dollars  ;  for  assisting  in  the  sur- 
veying and  dividing  the  lands  of  intestates,  or  others,  held  in  com- 
mon, when  called  upon  by  the  commissioners  appointed  by  the 
court  to  make  partition,  travelling  to  and  from  the  place,  and  per- 
forming the  duty,  per  day,  two  dollars. 

33.  The  rangers  of  each  and  every  county  shall  receive  the 
following  fees,  and  no  other,  to  wit  :  for  entering  each  horse,  mare, 
gelding,  colt  or  mule,  including  the  certificate,  fifty  cents  ;  for 
entering  each  head  of  neat  cattle,  twentyfive  cents  ;  for    entering 


30.  1793,  c.  403.— 1797,  C.  482.— 1831,  c.  11.— 1807,  c.  725,  s.  4.— 1800,  C.  555,  s.  3.— 
Amended. 

31.  1783,  c.  185,  s.  15.— 1793,  e.  403.-1814,  c.  878,  s.  2. 

32.  17S3,  c.  185,  s.  15  —1786,  c.  252,  s.  1.— 1793,  c.  403. 

33.  1784,0.  22S,  s.  6.— 1799,  c.  542,  S.  2.— 1315,  C.  892.-1816,  C.  909.  -1777,  C.  119,  s. 
10.-1793,  c.  403. 


Chap.  CV.]  salaries  and  fees.  559 

each  head  of  hogs  or  sheep,  ten  cents  ;  for  every  bond,  twenty 
cents  ;  for  advertising  such  strays  as  are  required  to  be  advertised, 
one  dollar  and  fifty  cents  ;  for  every  search,  ten  cents. 

34.  The  commissioners  of  affidavits,  or  those  who  are  author-  Pf  commis- 
ized  by  law  to  act  as  such  in  each  and  every  county,  shall  receive  fidavits. 
the  following  fees,  and   no  other,  to  wit ;  for  every  affidavit  taken 

and  certified,  forty  cents  ;  for  affixing  the  seal  of  the  court,  when 
necessary,  twenty  five  cents. 

35.  The  processioners,  appointed  in   each  and   every  county,  Of  procession- 
shall  receive  the  same  fees  and  emoluments,  which  are  allowed  by  ^"^^^ 

law  to  county  surveyors. 

36.  The  several  standard  keepers  in  this  State  shall  be  entitled  P^  standard 
to  receive  the  following  fees,  and  no  other,  to  wit :   for  examining 

and  adjusting  each  pair  of  steelyards,  twentyfive  cents  ;  for  every 
weight  of  half  a  pound  and  upwards,  five  cents  ;  for  every  set  of 
weights  below  half  a  pound,  including  one  piece  of  each  denomi- 
nation, five  cents  ;  for  every  yard  stick,  or  other  measure  of  cloth, 
five  cents  ;  for  every  bushel,  half  bushel,  peck  or  other  measure, 
used  in  measuring  grain,  meal  or  salt,  ten  cents  ;  for  each  measure 
for  liquors,  three  cents. 

37.  The  jailers  of  every  county  shall  be  entitled  to  receive,  for  of  jailers, 
finding   each  prisoner  fuel,  one   pound  of  wholesome   bread,  one 
pound  of  good  roasted  or  boiled  flesh,  and   a  sufficient  quantity  of 
water,  with  every  necessary  attendance,  thirty  cents  per  day,  and 

no  more,  unless  the  courts  of  pleas  and  quarter  sessions  of  the  seve- 
ral counties,  a  majority  of  the  acting  justices  being  present,  shall 
deem  it  expedient  to  increase  said  fees,  which  they  are  authorized 
to  do  :  Provided,  that  such  increase  does  not  exceed  fifty  per 
cent,  on  the  above  sura,  which  increase  shall  be  recorded,  and 
shall  not  be  altered  within  one  year  thereafter. 

38.  The  several  inspectors  in  this   State  shall  receive  the  fol-  Of  inspectors. 
lowing  fees  for  the  duties  required  of  them,  and  no  other,  to  wit  ; 

for  inspecting  ton  timbers,  ten  cents  per  ton  ;  for  inspecting,  turn- 
ing up,  coopering,  finding  nails,  hoops,  and  issuing  a  note  for  every 
wagoned  hogshead  of  tobacco,  the  sum  of  seventy  cents  ;  and  for 
each  rolling  hogshead,  eighty  cents  ;  for  inspecting  transfer  tobac- 
co, at  the  rate  of  five  cents  per  hundred  pounds  ;  for  inspecting 
each  barrel  of  flour,  five  cents  ;  for  inspecting  each  barrel  of  pork 
or  beef,  ten  cents  ;  for  inspecting  each  barrel  of  rice  or  butter,  six 
and  a  fourth  cents  ;  for  inspecting  each  barrel  of  fish,  three  cents  ; 
for  inspecting  each  barrel  of  pitch  or  turpentine,  two  and  a  half 
cents  ;  for  inspecting  each  barrel  of  tar,  two  cents  ;  for  inspecting 
every  hundred  staves  or  heading,  two  and  a  half  cents  ;  for  every 
thousand  shingles,  two  and  a  half  cents  ;  for  every  thousand  feet 
of  boards,  plank  or  scantling,  ten  cents  ;  for  every  barrel  of  flax- 
seed, containing  seven  and  a  half  bushels,  ten  cents. 

34.  1818,  c.  965,  s.  2. 

35.  1792,  c.  365,  s.  8.— 1816,  c.  923,  s.  1. 

S6.  1793,  c  395.— 1793,  c.  403.— 1818,  c.  965,  s.  2. 

37.  1793,  c.  403.— 1815,  c.  899.— 1817,  944,  s.  1  and  2. 

38.  1811,  c.  812,  s.  1.— 1803,  c.  642.— 1813,  c.  852,  s.  4.-1791,  c.  345,  s.  6.— 1784,  c. 
221,  s.  4.-1793,  c.  403.-1787,  c.  265,  s.  1. 


560 


SEAMEN. 


[Chap.  CVI. 


39.  The  tobacco  pickers,  for  every  hundred  pounds  picked  and 
prized,  shall  receive  the  fifteenth  part. 

40.  All  officers  of  the  State,  who  are  entitled  to  fees,  shall 
make  out  their  fee  bills  and  other  charges,  of  whatever  nature  they 
may  be,  relating  to  their  offices,  in  dollars  and  cents,  and  shall  give 

givenm^the  ^  receipts  for  their  fees,  and  all  other  moneys  by  them  collected, 
by  virtue  of  their  offices,  in  the  same. 


Of  tobacco 
pickers. 

Fee  bills  to  be 
made  out  in 
dollars  and 
cents. 


same. 


39.  1787,  c.  265,  s.  5- 

40.  1825,  c.  1284,  s.  1  and  2. 


Note. — References  to  Adjudged  Cases. 

Sect.  21.  Matlock  vs.  Gray,  4  Hawks,  1. 

Sect.  24.  Wingate  vs.  Galloway,  3  Hawks,  6.     Superior  Court  Office  vs.  Lockman, 
1  Dev.  146. 
Sect.  26.  Collins  vs.  Dickinson,  2  Hay.  2. 


CHAPTER  106. 


SEAMEN. 


AN    ACT    FOR    THE    RELIEF    OF    SICK    AND    DISABLED    AMERICAN 

SEAMEN. 


Section 


1 .  An  account  of  the  number  of  officers, 

&c.  to  be  rendered  by  masters  of 
vessels,  and  thirty  cents  per  month 
paid  on  each. 

2.  Coasting  vessels  subject  to  like  reg- 

ulations, &c. — Penalty  on  masters 
for  failing  to  render  account,  &c. 

3.  Collector  to  pay  the  money  to  the 


Section 

president  and  directors  of  the  Wil- 
mington Marine  Hospital  Associa- 
tion. 

4.  Money,  how  to  be  appropriated. 

5.  When  to  be  in  force. 

6.  Confirmed  by  an  act  of  congress,  and 

declared  to  be  now  in  force. 


Whereas,  by  an  act,  passed  by  the  General  Assembly  of 
1835,  chapter  sixteen,  it  was  enacted  as  follows,  (viz.)  "An  act 
for  the  relief  of  sick  and  disabled  American  seamen." 

Whereas  the  hospital  money,  collected  at  the  port  of  Wilming- 
ton, in  this  State,  under  the  acts  of  congress,  is  insufficient  for  the 
purposes  designed,  and  to  assist  the  Marine  Hospital  Association, 
recently  organized  in  the  town  of  Wilmington,  more  effectually  to 
accomplish  so  benevolent  an  object, 

1.   Be  it  enacted  by  the  General  Assembly  of  the  State  of  Jforth 

Carolina^  and  it   is  hereby  enacted  by  the  authority  of  the  same. 

An  account  of   That  before  any  ship  or  vessel  of  the  United   States  shall  be  ad- 


the  number  of 


1.  1835,  c.  16,  s.  1. 


Chap.  CVL]  seamen.  561 

mitted  to  enter  at  the  custom  house  at  the  port  of  Wilmington,  the  officers,  &c.  to 
master  of  said  ship  or  vessel  shall  render,  to  the  collector  of  said  masters^orves- 
port,  a  true  account  of  the  number  of  officers  and  seamen  that  have  seis,  and  thirtv 
been  employed  on  board  such  ship  or  vessel,  since  she  last  entered  paid^on'eSih 
or  cleared  at  any  port  of  the  United   States,  and  shall  pay  to  the 
said  collector  at  the  rate  of  thirty  cents  per  month,   for  each  and 
every  officer   and   seaman  so   employed,  which  sum  the  master  is 
hereby  authorized  to  retain  out  of  the  wages  of  such  officer  and  seamen. 

2.  On  the  arrival  of  any  coasting  vessel,  or  vessel  sailing  under  Coasting  ves- 
coasting  license,  (except  vessels  trading   within   the  limits  of  this  ffke  reo-iia- 
State,)  at  the  port  of  Wilmington,  the  master  of  said  vessel  shall  tions,  &c. 
forthwith  render,  to  the  collector  of  said  port,  a  true  account  of  the 
number  of  passengers,  officers  and  seamen,  who  came  in  and  were 
employed  on  board  said  vessel,  and  shall  pay  to  the  said  collector, 

for  each  cabin  passenger  and  himself,  fifty  cents,  and  for  each 
officer,  passenger  and  seaman,  twentyfive  cents,  which  payment 
for  the  crew  of  said  vessel  the  master  is  hereby  authorized  to 
retain  out  of  the  waaies  of  said  seamen  ;  and  if  the  master  of  any  „     u 

1  •  1      1     11    r  -1  1  1  ^1       Penalty  on 

ship  or  vessel  shall  tail  to  render  an  account,  or  render  a  lalse  masters  for 
account  of  the  number  of  passengers,  officers   and  seamen,  and  ||^g^^'^?^° ''j"' 
length  of  time  they  have  been  employed,  as  herein  required  by  the  &c. 
first  and  second    section,  he  shall  forfeit  and  pay  one   hundred 
dollars,  to  be  recovered  in  any  court  of  record  in  this  State,  at  the 
instance  of  the  collector   aforesaid,  to  the  use  of  the  Wilmington 
Marine  Hospital  Association. 

3.  The  money  collected  by  virtue  of  the  above  recited  act,  by  Collector  to 
the  collector  aforesaid,  after  deducting  for  his  compensation,  two  PL^'^®  ™° j°y 

I       1     ir-  I     11  1  -1  1  -1  1  to  the  president 

and  a  halt  per  cent.,  shall  be  paid  over  to  the  president  and  man-  and  directors  of 
agers  of  the  Wilmington  Marine  Hospital  Association  aforesaid,  Jhe  Wiimmg-- 

o  .  °       1  1     n  •         r  1  ,  ^°'^  Marine 

or  to   such  person   as   they  stiall  appoint  tor  that  purpose  ;  and  Hospital  Asso- 
should  the  collector  of  that  said  port  fail  or  refuse  to  pay  over  the  '^>^'^i°"- 
money  as   herein   directed,  he  shall  forfeit   and  pay  five  hundred 
dollars,  for  each   and  every  offence,  to  be  recovered  in   any  court 
of  record  in  this  State,  to  the  use  of  the  Wilmington  Marine  Hos- 
pital Association  aforesaid. 

4.  The  president  and  managers  of  the  Wilmington  Marine  Hos-  Money  how  to 
pital  Association   aforesaid   shall  faithfully  devote  all  the   money,  priated. 
coming  into  their  hands  in  virtue  of  this  act,  to  the  relief  of  sick 

and  disabled  American  seamen,  and  shall  annually  make  a  true 
return  of  their  proceedings  and  situation  to  the  public  treasurer  of 
the  State,  and  to  the  secretary  of  the  treasury  of  the  United  States. 

5.  This  act  shall  not  be  in  force   until  the  same   is  ratified  and  when  to  be  in 
confirmed  by  an  act  of  congress  of  the  United  States.  ^°''^'^- 

6.  And  whereas  the  said  recited  act  has  been  ratified  and  con-  Confirmed  by 
firmed  by  an  act  of  congress  of  the  United  States  :  Therefore,      gress,  and  de- 

Be  it  enactecL  &x.,  That  the  said  act  and  every  part  thereof  shall  blared  to  be 

,  I  •     1         1  /-  1  now  in  lorce. 

be  and  is  hereby  confirmed. 

2.  1835,  c.  16,  s.  2. 

3.  1835,  c.  16,  s.  3. 

4.  1835,  c.  16,  s.  4. 

5.  1835,  c.  IG,  s.  5. 
0.  Amendment. 

VOL.    I.  71 


562 


SEAT   OF    GOVERNMENT.         [ChAP.  CVII. 


CHAPTER  107. 


SEAT  OF  GOVERNMENT. 


AN  ACT  CONCERNING  THE  SEAT  OF  GOVERNMENT  AND  PUBLIC 

BUILDINGS. 


Section 

1 .  City  of  Raleigh  to  be  the  seat  of  gov- 

ernment. 

2.  Who  shall  be  a  board  to  take  charge 

of  the  public  buildings. 

3.  Board  to  direct  repairs,  which  shall 

be   paid  by  the   public   treasurer. 


Section 

4.  Unlawful  to  deface  the  walls  of  the 

state  house. 

5.  If  an  infant  offends,  parent  or  guar- 

dian to  pay. 


City  of 
Raleigh  to  be 
the  seat  of 
government. 


Who  shall  be 


shall  be  paid 
by  the  public 
treasurer. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  ofJVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  the  city  of  Raleigh  shall  be  deemed  and  considered  the  per- 
manent and  unalterable  seat  of  the  government  of  this  State,  and 
the  place  of  holding  the  meetings  of  the  General  Assembly,  and 
the  place  of  residence  of  the  chief  officers  of  the  State. 

2.  The  governor,  secretary  of  state,  treasurer  and  comptroller 
charge'of'the^^^'^®  hereby  constituted  a  board  to  take  charge  of  and  keep  in  repair 
public  build-     the  buildings,  belonging  to  the  State,  in  the  city  of  Raleigh. 

^^^\      ,.  3.    The  said  board   is  hereby  authorized  and   directed,    at  any 

repairs  which  time,  when  in  their  opinion  the  public  interest  shall  require  it,  to 
employ  persons  to  do  and  make  such  repairs  to  the  said  public 
buildings  and  property,  as  may  be  necessary  to  prevent  their  decay 
or  injury  for  the  want  of  repair,  for  which  services  a  reasonable 
and  just  price  shall  be  given,  to  be  judged  of  and  allowed  by  the 
said  board,  and  which  shall  be  paid  by  the  treasurer,  upon  their 
certificate  containing  a  statement  of  the  work  and  the  prices  for  it 
which  may  be  allowed. 

4.  It  shall  not  be  lawful  for  any  person  to  write  or  scribble  on 
the  walls  of  the  state  house,  or  mark  the  same  with  pictures  or 
otherwise,  under  the  penalty  of  five  dollars,  recoverable  before  any 
justice  of  the  peace  for  the  county  of  Wake,  to  be  recovered  by 
any  informer  to  his  own  use. 
If  an  infant  of-      5.    Should  such  ofFence  be  committed  by  an  infant  under  the 

tends, parent  ^  ,  .  ,.  •'  ,  , 

or  guardian  to  age  01  twcntyone  years,  his  guardian  or  parent,  as  the  case  may  be, 
P^y-  shall  be  liable  to  the  penalty  prescribed  by  this  act,  to  be  recover- 

ed as  above  directed. 


Unlawful  to 
deface  the 
walls  of  the 
state  house. 


1.  1792,  c.  367,  s.  4.— 1791,  c.  337. 

2.  1827,  C.  29,  s.  2. 

3.  1827,  c.  29,  s.  5. 

4.  1829,  c.  29,  s.  1. 

5.  1829,  c.  29,  s.  2. 


Chap.  CVIIL]     secretary  of  state. 


563 


CHAPTER  108. 


SECRETARY   OF  STATE. 


an  act  concerning  the  secretary  of  state. 


Sectiok 

1.  Bond  to  be  given. 

2.  Bond  to  be  deposited  with  the  treas- 

urer. 

3.  Oaths  to  be  taken. 

4.  Remedy  on  the  bond. 

5.  Secretary  to  take  receipts  for  grants. 


Section 

6.  May  send  grants  by  mail. 

7.  Office  hours. 

8.  Compensation    to   the    secretary  as 

librarian,  and  for  certain  other  ser- 
vices. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

That  the  governor  for  the  time  being  is  required  to  demand  and  ^°^^  ^°  ^^ 
receive,  from  each  and  every  person  appointed  secretary  of  state,  " 
before  he  enters  upon  the  discharge  of  the  duties  of  his  office,  a 
bond  and  sufficient  security,  in  the  sum  of  twenty  thousand  dollars, 
which  bond  shall  be  taken  in  the  name  of  and  payable  to  the  State 
of  North  Carolina,  and  shall  be  in  the  following  form,  to  wit  : — 
Know  all  men  by  these  presents,  that  we,  A.  B.  and  C,  are  held 
and  firmly  bound  unto  the  State  of  North  Carolina,  in  the  sum  of 
twenty  thousand  dollars,  to  which  payment  well  and  truly  to  be 
made,  we  bind  ourselves,  our  heirs,  executors  and  administrators, 
jointly  and  severally,  firmly  by  these  presents,  sealed  with  our 
seals,  and  dated  the  day  of  .     The  condition  of  the 

above  obligation  is  such,  that  whereas  the  above  bounden  A.  is 
constituted  and  appointed  secretary  of  state  for  the  State  of  North 
Carolina,  if  therefore  the  said  A.  shall  well  and  truly  execute  and 
discharge  the  duty  of  secretary  of  state  in  all  cases,  agreeably  to 
law,  then  the  above  obligation  to  be  void,  otherwise  to  remain  in 
full  force  and  efiect. 

2.  The  said  bond,  when  executed   as  above  prescribed,  shall  Bond  to  be  de- 
be  deposited  in  the  treasurer's  office  for  the  safe  keeping  thereof.  fhe\rea^rer. 

3.  It  shall  be  the  duty  of  each  and  every  secretary  of  state,  be-  Oaths  to  be 
fore  he   enters  on   the   duties  of  his  office,  besides   entering  into^^i^en- 
bond  as  aforesaid,  to  take  the  oaths  required  by  law  for  the  quali- 
fication of  public  officers,  and  also  an  oath  of  office. 

4.  Any  person  injured  or  aggrieved  by  the  secretary  of  state,  l^emedy  on  the 
by  virtue  of  his  office,  may  bring  suit  on  the  said  bond,  in  the  name 

of  the  State,  and  in  any  court  of  record  within  this  State. 

5.  The  secretary  of  stale  shall  keep  a  receipt  book,  in  which  Secretary  to 

■^  take  receipts 

for  grants. 

1.  1798,  c.  503,  s.  1. 

2.  1798,  c.  503,  s.  2. 

3.  1793,  c.  503,  s.  3. 

4.  1798,  e.  503,  s.  4. 

5.  1799,  c.  535,  s.  2. 


564 


SHERIFFS. 


[Chap.  CIX. 


May  send 
grants  by  mail, 


Office  hours. 


Compensation 
of  the  secre- 
tary, as  libra- 
rian, and  for 
certain  other 
services. 


he  shall  take  from  each  and  every  person,  to   whom  a  grant  shall 
be  delivered,  a  receipt  for  the  same. 

6.  It  shall  be  lawful  for  the  secretary  of  state  to  enclose  grants 
•  by  mail  to  any  person,  requesting  him  to  do  so,  first  entering  the 

same  on  the  receipt  book  kept  in  his  office. 

7.  For  the  convenience  of  the  secretary  of  state  and  persons 
having  business  wuh  him,  he  shall  be  required  to  attend  to  every 
application  made  to  him  for  official  duties,  at  his  office,  which  shall 
be  in  the  city  of  Raleigh,  between  the  hours  of  nine  and  twelve 
o'clock,  and  between  two  and  five  o'clock,  on  every  day  in  the 
year,  (Sundays  and  the  fourth  of  July  excepted,)  and  the  secretary 
of  state  shall  not  be  required  to  attend  to  any  call  made  at  any 
other  time  of  the  day. 

8.  Whereas,  by  a  resolution  of  the  General  Assembly  of  one 
thousand  eight  hundred  and  thirty  one,  the  secretary  of  state  was 
required  to  collect  the  books  of  the  state  library,  and  discharge 
the  duty  of  librarian  ;  and  by  an  act  of  the  present  General  As- 
sembly, respecting  the  public  printing,  important  additional  duties 
are  required  of  him  : —  . 

Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same^ 
That  the  secretary  of  state  be  allowed  the  sum  of  fifty  dollars  per 
annum,  for  his  services  as  state  librarian,  during  the  term  he  has, 
and  may  continue  to  discharge  the  duties  of  state  librarian  ;  and 
the  sum  of  one  hundred  dollars,  every  two  years,  for  the  services 
required  of  him  by  the  act  aforesaid  concerning  the  public  printing, 
to  be  paid  by  the  public  treasurer  as  an  addition  to  the  salary  of 
the  said  secretary  of  state. 


6.  1821,  e.  1121,  s,  3. 

7.  1824,  c.  1238,  s.  6. 

8.  1836,  e.  32. 


CHAPTER   109. 


SHERIFFS. 


AN  ACT  CONCERNING   SHERIFFS. 


Section 

1 .  Sheriffs,  how  elected. 

2.  When  election  to  be   held,  and  how 

returns  to  be  made. 

3.  Persons  having  the   greatest  number 

of  votes,  to  be  declared  elected — If 
two  or  more  have  an  equal  number, 
county  court  to  choose  between 
them. 

4.  When  the  returns  shall  be  meide. 


Section 

5.  Election  to  be  held  every  two  years 

— County  court  to  decide  contested 
elections. 

6.  Who  shall  be  ineligible  to  the  office 

of  sheriff. 

7.  No  sheriff  shall  be  capable  of  being 

re-elected,  who  has  failed   to  settle 
for  public  dues. 

8.  Sheriff  elect  to  give  bonds  and  take 


Chap.  CIX.] 


SHERIFFS. 


565 


Section 

oaths  before  entering  upon  the  du- 
ties of  his  office. 
Sheriff  to   renew  his  bonds  annual- 

ly- 

Justices  to  meet  on  the  second 
and  third  day  of  the  court  after 
an  election,  to  take  the  sheriff's 
bonds. 

How  sheriff  may  be  removed  from 
office — Duty  of  the  coroner,  and  of 
the  county  court,  in  such  case. 

Coroner  to  give  bonds  and  take  oaths 
when  required  to  act  as  sheriff. 

Form  of  the  bond  to  be  given  by 
the  sheriff  for  the  faithful  dis- 
charge of  his  duty  in  office. 

Sheriff  to  take  oaths. 

Sheriff's  sureties  liable  for  fines  and 
amercements. 

Sheriff  not  compelled  to  serve  more 


9. 


10. 


11. 


12. 


13. 


14. 
15. 

16. 


Sectiok 

than  two    years — May  resign  his 

office  to  the  county  court. 
Penalty  on  person  elected  sheriff  for 

refusing  to  accept — Proviso  where 

he  is  unable  to  give  security — Who 

not  compellable  to  serve  as  sheriff. 
Sheriff  to   execute  all   process  from 

courts — Penalty  for  neglect. 
Sheriff  to   take  no  obligation,  from 

any  person  in  his  custody,  but  such 

as  is  payable  to  himself,  &,c. 
Sheriff  permitting  an  escape  in  civil 

cases,  to  be  liable  to  an   action  of 

debt. 
Sheriff  not  to  farm  his  office. 

22.  Sheriff  to   have   the  custody   of  the 

public  jail. 

23.  Sheriff  and  his  sureties  to  be   liable 

for  claims  put   into  his  hands   for 
collection. 


17. 


18. 


19. 


20. 


21. 


^4- 


ti 4   - 

1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JSTorth 

Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 

That  the  sheriffs  of  each  county  in  this  State  shall  be  elected  by  Sheriffs,  how 

the  free  white  men  of  the  county,  entitled  to  vote  for  members  of®'*^'^^^'^- 

the  house  of  commons,  except   that  no  person,  who  shall    have 

been  convicted  of  felony,  or  the   crimen  falsi,  shall  be  capable  of 

voting  for  a  sheriff. 

2.  The  election  of  sheriff  shall  take  place  at  the  usual  time  and  When  election 
places  in  each  county  for  the  election  of  members  of  the  General |j°^^'^j.gj:i|j^^^g^^ 
Assembly,  under  the  same  rules  and  regulations  as   prescribed  by  be  made. 
law  for  conducting  said  elections,  except  that  the  returns  shall  be 

made  to  the  clerk  of  the  county  court,  and  the  election  of  sheriff 
shall  be  under  the  inspection  of  such  persons,  as  the  county  court 
shall  appoint  at  its  session  next  before  the  election,  and  in  case  of 
the  failure  of  the  persons  appointed  to  hold  said  election  or  either 
of  them,  it  shall  be  competent  for  a  justice  of  the  peace  and  two 
freeholders  to  supply  the  vacancy. 

3.  The  person,  having  the  greatest  number   of  votes,  shall  be  Person  having 
declared  elected  by  the  county  court,  at  its    term   next  after    the  nu^fieToT 
election,  and  if  two  or  more  persons  shall  have  the    greatest  num-  votes  to  be  de- 
ber  of  votes  and  an  equal  number,  the  county  court,  a  majority  of  jf  t^o  q,.  more 
the  acting  justices  beina;  present,  shall  proceed  to  choose  from  the  have  an  equal 

^•'i.,^-'^  ,^1  ,  r  .1      number,  county 

persons,  so  having  the   greatest    and  equal  number    oi  votes,  the  court  to  choose 

person  to  act  as  sheriff.  between  them. 

4.  The  return  of  votes  given  for  sheriff,   shall  be  made  by  l^^e  ^^^.^^"gll^Ybe 
returning  officers  to  the  clerk  of  the  county  court,  within  the  time  made. 
fixed  by  law  for  making  the  returns  of  elections    for   members  of 
assembly,  and  it  shall  be  the  duty  of  tlie  clerks  to   attend  on  such 

day  and  place,  to  receive  said  returns  of  the  votes  for  sheriff. 


1.  1829,  c.  5,  s.  1.— 1830,  c.  25,  s.  6. 

2.  1829,  c.  5,  s.  2. 

3.  1829,  c.  5,  s.  2. 

4.  1830,  c.  25,  s.  4  and  5. 


566  SHERIFFS.  [Chap.  CIX. 

Election  to  be  5.  The  election  of  sheriff  shall  take  place  in  each  county  every 
vears^^^'^  ^^'^  two  years,  subject  to  the  same  rules  and  regulations,  as  prescribed 
County  court  in  a  preceding  section  of  this  act,  and  the  county  courts,  a  major- 
tes^eTelecUons  ^^J  °^  ^^^  acting  justices  being  present,  shall  be  a  competent  tri- 
bunal to  decide  all  contested  elections  under  this  act. 
Who  shall  be  Q.  No  person  shall  be  eligible  to  the  office  of  sheriff,  who  is 
the  office  of  "Ot  of  the  age  of  twentyone  years,  and  who  has  not  resided  in 
sheriff.  the  county,  in  which  he  is  chosen,  for    one  year  immediately  pre- 

ceding his  election,  and  shall  not  have  possessed  a  freehold,  of  at 
least  one  hundred  acres  of  land,  in  fee  simple,  for  the  space  of 
six  months  next  before  and  immediately  preceding  the  day  of  his 
election,  which  freehold  he  shall  continue  to  hold  during  his  term 
of  office. 
No  sheriff  "^ •  ^°  person  shall  be  ehgible   to  the  office    of  sheriff  in  any 

shall  be  capa-    county,  who  has  been  or  hereafter  shall  be  sheriff  of  such  county, 
elected' w'lfo'^^  and  hath  failed  to  settle  with  and  fully  pay  up,  to  every  officer,  the 
has  failed  to     taxes  which  werc  by  law  due  from  him,  nor    shall    any  court  per- 
ifc  due"  ^"  "   '^^^  ^"y  s^^'^  former  sheriff  to  give  bond  for  or  re-enter  upon    the 
duties  of  said  office,  until  he  has  produced   before   said  court,  the 
receipt  in  full  of  every  officer  aforesaid  for  such  taxes. 
Sheriff  elect  to      8.  The  person,  declared  to    be    elected  in  manner    above  pre- 
fake  oaths  be-  scribed,  shall,  in  open  court,  at  the  same  session  at  which  he  is  so 
fore  entering     declared,  enter  into  the  bonds  and  take  the  oaths,  which  now    are 
gF  his^  office!^^^  o^  hereafter  may  be  required  by    law  for  the  qualification  of  sher- 
iffs ;  and  until  such  bond  shall  be  received  by  the  court,  no  person, 
declared  to  be  chosen  under  this  act,  shall  be  deemed  to  be  sheriff, 
or  shall  on  any  pretence   enter  on  the    duties  of  sheriff ;  and    it 
shall  be  the  duty  of  the  sheriff  elect  to  prepare  and  tender  to  the 
court,  the  bonds  required  of  him  on  or  before  the  second   day   of 
the  term  aforesaid,  at  or  before  four  o'clock  in  the  afternoon  of  the 
said  day,  but  in  case  a  majority    or  twelve  of  the   justices  of  the 
peace  of  such  county  shall  not  be  present,  then  and  in   that    case 
the  sheriff  elect  shall  give  bond,  at  or    before  two  o'clock  of  the 
third  day  of  the  court  aforesaid  ;   and   in  case  any   sheriff  elect 
shall  refuse  or  neglect  to  comply  with  the  provisions  of  this  sec- 
tion, the  county  court,,  a  majority  of  the  acting   justices    of  the 
county  being  present,  shall  forthwith  proceed  to  elect  a  sheriff,  who 
shall  enter  into  the  several  bonds  and    take  the  oaths  required    by 
law,  and  shall  continue  in  office  until  the  next  regular  election. 
Sheriff  to  re-         9-   ^^  shall  be  the  duty  of  the  county  court  to  require  the  sheriff 
new  his  bonds  to  renew  his  bonds  annually,  and  to  produce  the  receipts  from  the 
annua  y.  public  treasurer,  county  trustee  and  wardens  of  the  poor,  for  the 

time  being,  in  full  of  all  moneys  by  him  collected,  or  which  ought 
to  have  been  by  him  collected,  for  the  use  of  the  State  and  county, 
and  for  which  he  shall  have  become  accountable  ;  a  majority  of  the 
acting  justices  being  present  at  the  renewal  thereof,  and  a  failure 

5.  1829,  c.  S,  s.  4. 

6.  1829,  c.  5,  s.  6.— 1830,  c.  25,  s.  3. 

7.  1830,  c.  25,  s.  2.— 1806,  c.  699,  s.  2. 

8.  1829,  c.  5,  s  5.— 1830,  c.  25,  s.  1. 

9.  1829,  c.  5,  s.  5. 


Chap.  CIX.]  sheriffs.  567 

of  the  sheriff  elect  to  renew  his  bonds  or  to  exhibit  the  aforesaid 
receipts  shall  create  a  vacancy. 

10.  A  majority  or  twelve  of  the   acting  justices  in  the  several  Justices  to  meet 
counties  are  required  to  meet  at  the  county  court,  which  shall  first  and'jhird'^da^ 
be  held  after  the  election  of  sheriff,  on  the  second  and  third  days  of  the  court " 
of  the  term,  for  the  purpose  of  receiving  from  the  sheriff  elect  the  ^i^n'^to'^take'the 
several  bonds  prescribed  by  law.  sheriff's  bond. 

11.  If  any  sheriff,  elected  under  this  act,  shall  be  convicted  i"  jj^^^  gj^^j.-^. 
the  superior  or  county  courts  of  a  misdemeanor  in  office,  the  court  may  be  re- 
may  at  their  discretion,  as  a  part  of  his  punishment,   remove  him  ^"^'^^  ^^™^  °^' 
from  office,  and  on  any  vacancy  created  by  this  or  any  other  means  Duty  of  the 
in  the  ofiice  of  sheriff,  it  shall  be  the  duty  of  the  coroner  of  the  the°countT'^ "'' 
county  to  execute  all  process  directed  to  the  sheriff,  until  the  first  court,  in  such 
session  of  the  county  court  next  succeeding  such  vacancy,  and  jt^^^®" 

shall  be  the  duty  of  the  county  court  at  said  session,  a  majority  of 
the  justices  being  present,  to  elect  a  sheriff  to  supply  the  vacancy 
for  the  residue  of  the  term  of  two  years,  who  shall  possess  the 
same  qualifications,  and  enter  into  the  same  bonds,  and  be  subject 
to  the  same  removal,  as  the  sheriff  regularly  elected  under  this  act, 
and  should  the  court  fail  to  fill  such  vacancy,  the  coroner  shall 
continue  to  discharge  the  duties  of  sheriff  until  such  vacancy  shall 
be  filled. 

12.  Any  coroner,  required  by  this  act  to  discharge  the  duties  ofCoronertogive 
sheriff,  shall,  before  he  enters  on  his  duties  as  sheriff,  at  the  county  Q°j^ijg®^^g,^^'Jgf 
court  clerk's  office,  five  or  more  justices  being  present,  take  the  quired  to  act 
same  oath  and  enter  into  the  same  bonds,  that  now  are  or  hereafter  ^^  ^  ^"^^  ' 
may  be  required  of  sheriffs  regularly  elected,  and  the  oldest  or  first 
appointed  coroner  in  each  county  shall  be  considered  the  coroner 

to  discharge  the  duties  of  sheriff,  and  the  proceedings  shall  be  en- 
tered on  record  by  the  clerk. 

13.  Every  sheriff,  elected  or  appointed  under  any  of  the  pro- ^"rm  of  the 
visions  of  this  act,  shall,  besides  the  bonds  for  collecting  the  pub- given  by  the 
lie,  county  and  poor  taxes,  enter  into  bond  with  two  or  more  good  ^'^•®P?/)|-  ^'■'^ 
and  sufficient  securities,  in  the  penalty  of  ten  thousand   dollars,  charge  of  his 
payable  to  the  State  of  North  Carolina,  with  condition  in  the  fol-  duty  in  office, 
lowing  form,  that  is  to  say  :   "  The  condition  of  the  above  obliga- 
tion is  such,  that  whereas  the  above  bounden         is  elected  and  ap- 
pointed sheriff  of  county,  ,  if  therefore  the  said  shall 

well  and  truly  execute  and  due  return  make  of  all  process  and  pre- 
cepts, to  him  directed,  and  pay  and  satisfy  all  fees  and  sums  of 
money,  by  him  received  or  levied  by  virtue  of  any  process,  into 
the  proper  office,  into  which  the  same  by  the  tenor  thereof  ought 
to  be  paid,  or  to  the  person  or  persons,  to  whom  the  same  shall  be 
due,  his,  her  or  their  executors,  administrators,  attorneys  or  agents, 
and  in  all  other  things  well,  truly  and  faithfully  execute  the  said 
office  of  sheriff,  during  his  continuance  therein,  then  the  above  ob- 
ligation to  be  void,  otherwise  to  remain  in  full  force  and  effect  ;" 
which  said  bond  every  county  court,  a  majority  or  twelve  of  the 

10.  1829,  c.  5,  s.  10.— 1830,  c.  25,  s.  1.  ^ 

11.  1829,  c.  ri,  s.  8. 

12.  1820,  c.  5,  s.  9. 

13.  1777,  C.  118,  S.  1.— 1S23,  C.  1223. 


568 


SHERIFFS. 


[Chap.  CIX. 


justices  being  present,  is,  as  above  prescribed,  required  and  era- 
powered  to  demand  and  take,  and  cause  to  be  acknowledged  before 
them  in  open  court  and  recorded  ;  and  upon  a  breach  of  the  con- 
dition of  such  bond,  the  party  or  parties  injured  may  maintain  an 
action  on  the  same,  in  the  name  of  the  State,  and  no  such  bond 
shall  become  void  upon  the  first  recovery,  or  if  judgment  shall  be 
given  for  the  defendant,  but  may  be  put  in  suit  and  prosecuted 
from  time  to  time  until  the  whole  penalty  shall  be  recovered. 

14.  Every  sheriff  elect,  before  entering  upon  the  discharge  of 
the  duties  of  his  office,  shall  take  the  oaths  prescribed  by  law  for 
the  qualification  of  public  officers,  and  also  an  oath  of  office. 

15.  The  securities  to  sheriff's  bonds  shall  be  liable  for  all  fines 
and  amercements,  imposed  on  him,  in  the  same  manner  as  they 
are  liable  for  all  other  deficiencies  in  the  official  duty  of  sheriff. 

16.  No  sheriff  shall  be  compellable  to  serve  more  than  two  years, 
serve  more  than  ^"*^  every  sheriff  shall  be  at  liberty  to  vacate  his  office  by  resigning 
two  years.        the  Same  to  the  court  of  pleas  and  quarter  sessions  of  his  county, 

^y  resign  his  ^  majority  of  acting  justices  being  present  and  accepting   of  such 


Sheriff  to  take 
oaths. 


Sheriff's  sure- 
ties liable  for 
fines  and 
amercements. 

Sheriff  not 


ofBce  to  the 
county  court- 


resignation 


Penalty  on  per- 
son elected 
sheriff  for  re- 
fusing to  ac- 
cept. 


and  thereupon  the  said  court  may  proceed  to  elect  a 
proper  person  to  act  as  sheriff  as  in  other  cases  of  vacancy. 

17.  If  any  person,  who  shall  be  elected  or  appointed  sheriff  un- 
der any  of  the  provisions  of  this  act,  shall  refuse  to  accept  and 
execute  the  said  office,  he  shall  forfeit  and  pay  the  sura  of  one 
hundred  dollars,  to  the  use  of  the  State,  to  be  recovered  in  the 
name  of  the  State  by  action  of  debt  in  any  court  having  cognizance 

Proviso  where  thereof :  Provided  always,  that  if  any  person,  who  shall  be  elected 
gfve^ security.  °  ^"*^  appointed  as  aforesaid  shall  be  willing  to  execute  the  same,  but 
cannot  give  security  as  above  required,  and  shall  make  oath  in  the 
county  court,  that  he  hath  used  his  best  endeavors,  without  fraud 
or  collusion,  to  get  such  securities,  then  such  person  shall  not  incur 
the  penalty  aforesaid  :  .Mnd  provided  further,  that  no  member  of 
the  General  Assembly  or  council  of  state  shall  be  elected  or  appoint- 
ed, nor  shall  any  practising  attorney  be  obliged  to  act,  as  sheriff  of 
any  county. 

18.  Every  sheriff,  by  himself  or  his  lawful  officers  or  deputies, 
shall  from  time  to  time  execute  all  writs  and  other  process  to  him 
legally  issued  and  directed,  within  his  county,  or  upon  any  bay, 
river  or  creek  adjoining  thereto,  and  make  due  return  thereof,  un- 
der the  penalty  of  forfeiting  one  hundred  dollars  for  each  neglect, 
where  such  process  shall  be  delivered  to  him  twenty  days  before 
the  sitting  of  the  court,  to  which  the  same  is  returnable,  to  be  paid 
to  the  party  grieved  by  order  of  such  court,  upon  motion  and  proof 
of  such  delivery,  unless  such  sheriff  can  show  sufficient  cause  to 
the  court,  at  the  next  succeeding  term  after  such  order  ;  and  for 
every  false  return,  the  sheriff  shall  forfeit  and  pay  five  hundred 
dollars,  one  moiety  thereof  to  the  party  grieved,  and  the  other 
moiety  to  hira  or  those  that  will  sue  for  the  same,  to  be  recovered 


Who  not  com- 
pellable to 
serve  as  sheriff. 


Sheriff  to  ex 
ecute  all  pro- 
cess from 
courts. 


Penalty  for 
neglect. 


14.  1777,  c.  118,  S.  1. 

15.  1829,  c.  33. 

Iti.  1777,  c.  IKS,  S.  1.— ISOS,  c.  752. 

17.  1777,  c.  US,  s.  2  and  4. 

l«.  1777, c.  116,s.  5.— 1821, c.  1110. 


Chap.  CIX.]  sheriffs.  569 

with  costs  by  action  of  debt  in  any  court  of  record,  and  moreover 
be  further  hable  to  the  action  of  the  party  grieved  for  damages. 

19.  It  shall  not  be  lawful  for  any  sheriff,  or  his  officer  or  deputy,  Sheriff  to  take 
to  take  any  obligation  of  or  from  any  person  or  persons  in  his  cus-  fVom  any^^°°' 
tody,  for  or  concerning  any  matter  or  thing  relating  to  his  office,  person  in  his 
otherwise  payable  than  to   himself  as   sheriff,   and   dischargeable  gyg^°^^'jgp 
upon  the  prisoner's  appearance  and   rendering  himself  at   the  day  able  to  him- 
and  place  required  in  the  writ,  whereupon  he  was  or  shall  be  taken  ^^.^  ^^  ^    ^     ' 
or  arrested,  and  his  securities  discharging  themselves  therefrom  as 

special  bail  of  such  prisoner,  or  such  person  or  persons  keeping 
within  the  limits  and  rules  of  any  prison,  and  every  other  obliga- 
tion, taken  by  any  sheriff  in  any  other  manner  or  form,  by  color 
of  his  office,  shall  be  null  and  void,  except  in  any  special  case  any 
other  obligation  is  or  shall  be  by  law  particularly  and  expressly 
directed  ;  and  no  sheriff  shall  demand,  exact,  take  or  receive  any 
greater  fee  or  reward  whatsoever,  nor  shall  have  any  allowance, 
reward  or  satisfaction  from  the  public,  for  any  service  by  him  done, 
other  than  such  sum  as  the  county  court  shall  allow  for  ex  officio 
services,  and  the  allowance  given  and  provided,  or  which  shall  be 
from  time  to  time  given  and  provided  by  law. 

20.  When  any  sheriff  shall  take  the  body  of  any  debtor  in  exe-  Sheriff  permit- 
cution,  or  upon  attachment  for  not  performing  a  decree  in  chancery  in^fivHcTsTs'^to 
for  the  payment  of  any  sum  of  money,  and  shall  wilfully  or  negti- be  liable  to  an 
gently  suffer  such  debtor  to  escape,  the  person  suing  out  such  exe-  ^^  ^°"  °     ^  *"■ 
cution  or  attachment,  his  executors  or  administrators  shall  and  may 

have  and  maintain  an  action  of  debt  against  such  sheriff,  and  in  case 
of  his  death,  against  his  executors  or  administrators,  for  the  recovery 
of  all  such  sums  of  money,  as  are  mentioned  in  the  said  execution 
or  attachment  and  damages  for  detaining  the  same. 

21.  No  sheriff  shall  let  to  farm,   in  any  manner,  his  county,  or  Sheriff  not  to 
any  part  of  it,  under  pain  of  forfeiting  five  hundred  dollars,  one  half^"""^^^  office. 
to  the  use  of  the  county,  and  the  other  half  to  the  person  suing  for 

the  same. 

22.  The  several  sheriffs  of  this  State  shall  have  the  care  and  sheriff  to  have 
custody  of  the  public  jail  in  their  respective  counties,  and  they  ^t^e  public  Jail, 
shall  appoint  the  keeper  thereof. 

23.  Whenever  a  sheriff,  by  himself  or  deputy,  shall  receive  into  Sheriff  and  his 
his  hands  claims  for  collection,  it  shall  be  his  duty  as  an  officer,  liable  for 
diligently  to  endeavor  to  collect  and  pay  them  over,  in  like  manner  f^.^'^®  put  into 
as  constables  are  now  bound  ;  and  in  default  of  such  duty,  he  shall  collection. 

be  liable  to  the  owner  of  such  claims  for  damages,  which  may  be 
recovered  in  any  court  of  law,  by  suit  on  his  official  bond,  given 
for  the  faithful  discharge  of  his  duty  in  office  ;  and  for  moneys 
collected  on  such  claims,  the  sheriff  and  his  sureties  shall  be  liable, 
in  like  manner  and  for  like  damages  as  are  now  provided  for  in  the 
case  of  money  collected  by  sheriffs  under  process  of  law. 

19.  1777,  C.  118,  s.  8. 

20.  13  Edw.  1,  c.  U.— 1777,  c.  US,  s.  10  and  11. 

21.  23  Hen.  6,  c.  9. 

22.  24  Edw.  3,  c.  10. 

23.  1836,  c.  28. 

VOL.  I.  72 


570  SLANDER    OF    WOMEN.  [ChAP.  CX. 

Note. — References  to  Adjudged  Cases. 

Sect.  13.  Hostler  rs.  Patterson,  1  Hay.  216.  Governor  vs.  Matlock,  2  Hawks,  366. 
Grumpier  us.  Governor,  1  Dev.  52.  Governor  »s.  Twitty,  ib.  153.  Governor  i;s.  Matlock, 
ib.  214.     Branch  vs.  Elliot,  3  Dev.  80.     Governor  vs  Munroe,  4  Dev.  412. 

Sect.  18.  Hogg  vs.  Bloodworth,  Conf.  477.  Davis  vs.  Lancaster,  1  Murph.  255. 
Douglas  vs.  Auld,  1  Car.  Rep.  500. 

Sect.  19.  Denson  ijs.  Sledge,  2  Dev.  136. 


CHAPTER    110. 
SL.ANDER    OF    IVOMEN. 


AN    ACT   TO    ENABLE   WOMEN,  IN   CERTAIN   CASES,    TO    MAINTAIN 

ACTIONS  OF  SLANDER. 

Whereas  it  is  of  the  first  importaoce  in  every  free  and  well 
regulated  government,  that  the  laws,  which  secure  to  individuals 
the  enjoyment  of  private  character,  should  be  plainly  defined  and 
clearly  understood  ;  and  as  doubts  have  arisen  whether  actions  of 
slander  can  be  maintained  in  this  State  against  persons,  who  may 
attempt,  in  a  wanton  and  malicious  manner,  to  destroy  the  reputa- 
tion of  innocent  and  unprotected  women,  whose  very  existence  in 
society  may  depend  on  the  unsullied  purity  of  their  character  : 

Be  it  enacted   by  the  General  Assembly  of  the  State  of  JYorth 

Carolina,  and  it  is  hereby  enacted    by  the   authority    of  the  same, 

What  words      That  from  and  after  the  passing  of  this  act,  any  words  spoken  of 

spoken  of         women,  which  may  amount  to  a  charge  of  incontinency,    shall  be 

women  shallbe  '         ,    ,     ,  ,  •'^        i  •         ,  ,  °  i      i     ,i  ,  •  "^  J 

actionable,  deemed  and  held  to  be  actionable,  and  shall  subject  the  person 
using  them  to  an  action  on  the  case,  to  be  prosecuted  by  the  party 
aggrieved,  in  any  court  of  record  having  cognizance  thereof,  under 
the  same  rules  and  regulations  as  have  been  heretofore  observed 
in  the  trials  of  actions  of  slander. 

1808,  C.  748. 


Note. — References  to  Adjudged  Cases. 


^ 


t*  Watts  vs.  Greenlee,  2  Dev.  115. 


CHA.P.  CXI.] 


SLAVES,    ETC. 


\ 


571 


CHAPTER  111. 

SL.ATE8  AND  FREE   PERSONS  OF 

COL.OR. 


AN  ACT  CONCERNING  SLAVES  AND  FREE  PERSONS  OF  COLOR. 


2. 

3. 


Section 
1.  Negroes,  mulattoes,  or  persons  of  col- 
or, imported  contrary  to  act  of  con- 
gress, to  be  sold  for  the  use  of  the 
State. 
Sheriff's  duty  in  seizing  and  selling. 
Sheriff's  duty  when  such  negroes,  &c. 
abscond. 

4.  Persons  giving  notice  of  such  negroes, 

&c-  to  have  one  fifth  of  their  value. 

5.  Sales  to  be  made  at  the  court  house, 

and  sheriff  to  give  bills  of  sale. 

6.  Sheriff's  commissions,  &c.  for  making 

such  sales. 

7.  Certain  former  purchases  confirmed. 

8.  The  issue  of  negroes,  &c.  imported, 

included  in  the  foregoing  provisions. 

Penalty  for  bringing  slaves  from  cer- 
tain states. 

Reward  for  taking  up  runaways. 

Runaways  to  be  committed  to  jail  in 
certain  cases,  and  notice  to  be  given. 

Duty  of  a  justice  when  a  runaway  is 
brought  before  him— And  also  of 
the  constable  to  whom  such  runa- 
way may  be  committed. 

Penalty  on  any  sheriff,  &c  for  em- 
ploying the  runaway,  or  keeping 
him  longer  than  this  act  directs,  or 
for  suffering  him  to  escape. 

Keepers  of  ferries  to  give  passage  to 
constables,  &c.  conveying  runa- 
wavs. 


9. 

10. 
11. 

12. 


13. 


14. 


15 


Notice  to  be  given  by  the  jailer,  in 
certain  cases,  in  the  State  Gazette. 

Runaway  slaves  may  be  sold,  in  cer- 
tain cases,  by  order  of  the  county 
court. 

17.  Sheriff's  commissions  on  such  sale. 

18.  Sheriff  to  give  a  bill  of  sale — Pro- 

ceeds of  such  sale,  how  appropri- 
ated. 

19.  Owner   may  recover   the  money  on 

petition. 

20.  The  county  to  pay  the  expenses  of 

runaways  in   certain    cases — Such 


16 


27. 

23. 
29. 

30. 

31. 


Section 

expenses    to    be   recovered   of  the 
owner  when  he  becomes  known. 

21.  Slaves  offering  forged  free  passes,  to 

be  whipped. 

22.  Runaway  slaves  may  be  outlawed  in 

certain  cases. 

23.  Slaves  not  to  go  armed,  nor  to  hunt 

with  a  gun. 

24.  Slaves  not  to  go  off  their  master's 

plantation  without  a  written  permit. 

25.  Slaves  not  to  raise  stock. 

26.  Owners  of  slaves,  not  properly  feed- 

ing them,  &c.  to  be  liable  for  their 

stealing  corn,  &c. 
Slaves  not   to   teach   each  other  to 

read,  &c. 
Slaves  not  to  sell  spirituous  liquors. 
Slaves  not  to  play  at  any  game  for 

money,  &c. 
Penalty  on    slaves  for  burning   the 

woods. 
Slaves  not  to  be  allowed  to  hire  their 

own     time — Proceedings    in    such 

cases. 

32.  Slaves  not  to  go  at  large  as  freemen. 

33.  Negroes,   &c.    not  to   meet  for  the 

purpose  of  dancing,  &c.  without  a 
written  permit. 

Slaves,  &c.  not  to  preach  in  public. 

Conspiracy  of  slaves,  how  punisha- 
ble. 

Insurrection  of  slaves,  how  punisha- 
ble. 
37.  Free  persons  joining  conspiracy,  &c. 
of  slaves,  how  punishable. 

What  evidence  shall  be  received  in 
cases  of  insurrection,  &c. 

Slaves  convicted  of  conspiracy,  &c. 
to  suffer  death,  or  be  transported. 

Slaves  returning  voluntarily  from 
transportation,  to  suffer  death — If 
brought  by  their  owner,  &c-,  to  be 
forfeited. 

Slaves,  for  trivial  offences,  to  be  tried 
before  a  justice  of  the  peace. 


34. 
35. 

36. 


33. 


39. 


40. 


41. 


572 


SLAVES,    ETC. 


[Chap.  CXI. 


Section 

42.  What  jurisdiction  the  county  court 

shall  have  over  offences  committed 
by  slaves. 

43.  Jurisdiction  of  the  superior  court  over 

offences  committed  by  slaves. 

44.  Trials  of  slaves  may  be  removed  as 

in  cases  of  free  persons. 

45.  Slaves  shall  be  entitled  to  a  trial  by 

jury  when  tried  in  court. 

46.  Slaves,  for  capital  offences,  to  be  tried 

on  presentment  or  indictment,  and 
be  allowed  challenges  of  jurors. 

47.  Slaves  allowed  the  benefit  of  clergy. 
4S.  Owner  of  slave  to  have  notice  of  the 

trial  in  certain  cases. 

49.  Where  the  owner  cannot  be  found,  the 

court  shall  appoint  counsel  for 
slaves. 

50.  Against  and  for  whom  slaves  and 

other  persons  of  color  may  be  wit- 
nesses. 

51.  Court  to  give  a  charge  to  a  negro, 

&c.  examined  as  a  witness. 

52.  Negro,  &c.  committing  perjury,  to  be 

punished  as  a  free  man, 

53.  Incases  of  insurrection,  &c.  a  com- 

mission of  oyer  and  terminer  may 
issue. 

54.  Compensation  to    the    prosecuting 

officer  in  such  case. 

55.  Appeal  allowed  from  such  court  of 

oyer  and  terminer  to  the  supreme 
court. 

56.  Judge  may  in  certain  cases  continue 

the  cause  to  the  regular  term  of  the 
superior  court. 

57.  How  slaves  may  be  emancipated- 

Owner  to  give  bond  conditioned  for 
slaves  leaving  the  State,  &c. 

58.  Emancipated  slaves  to  leave  the  State 

in  ninety  days. 

59.  How   slaves   may   be   emancijiated 

when  directed  so  to  be  done  by  will. 

60.  Slaves  over  fifty  years  of  age  may  be 

emancipated  for  meritorious  ser- 
vices. 

61.  Emancipated  slaves,  not  leaving  the 

State,  or  returning,  to  be  arrested 
and  sold. 

62.  In  such  case,  suit  may  also  be  brought 

upon  the  bond  given  by  the  owner. 

63.  Grand  jury  to  present  all  slaves  vio- 

lating this  act. 

64.  No  slave  to  be  set  free  but  according 

to  this  act. 

65.  Free  negroes,  &c.  not  to  migrate  into 

this  State — Penalty  for  coming  into 
the  State  and  not  leaving  after 
twenty  days'  notice. 


67. 


68. 


70. 


71. 


72. 


Section 
66.  How  to  proceed  against  free  negroes, 

&c.  coming  into  this  State. 
After  term  of  service,  to  remove  under 

like  penalties. 
Penalty  on    persons  bringing    free 

negroes,  &e.  into  this  State. 
69.  Vagabond  free  negroes,  &c.,  how  to 

be  dealt  with. 
Money  arising  from  the  hire  of  free 

negroes,  &.c.  to  be  paid  to  the  county 

trustee. 
County  court  may  bind  out  the  chil- 
dren of  free  negroes,  &c.  in  certain 

cases. 
Persons  to  whom  free  negroes,  &c. 
are  hired,  to  feed  them,  &c.,  and  not 

to  remove  them  from  th€  county. 

73.  Free  negroes,  &c.  charged  with  mi- 

grating into  this  State,  &c.,  to  be 
tried  by  a  jury. 

74.  Who  shall  be  deemed  free  negroes. 

75.  Grand  juries  to  be  charged  and  to 

make  presentment  of  the  offences 
of  free  negroes,  &e.  coming  into  this 
State. 

76.  Free  negroes,  &c.  migrating  from  this 

State,  and  being  absent  ninety  days, 

not  to  be  permitted  to  return. 
Free  negroes  not  to  intennarry  with 

slaves. 
Any  person  of  color,  attempting  to 

commit  a  rape  on  a  white  woman, 

to  suffer  death. 
79.  Free  negroes,  &c.  not  to  gamble  with 

slaves. 
Free  negroes,  &c.  not  to  suffer  slaves 

to  gamble  in  their  houses. 
Free  negroes,  &c.   not  to   entertain 

slaves  in  their   houses  at  certain 

times. 
Slaves  not  to  trade  with  each  other 

for  certain  articles. 
Free  negroes,  &e.  not  to  trade  with 

slaves  for  certain  articles. 
84-  Appeals  allowed  in  cases  under  the 

two  preceding  sections. 
Free   negroes,  &c.  not  to  hawk  or 

peddle  without  a  license. 
Fines  on  free  persons  of  color,  how 

to  be  enforced. 
How  such  free  persons  of  color  shall 

be  hired  out. 
Persons   hiring  them,   to  have    the 

same  authorities,  and  be  under  the 

same  liabilities,  as  masters  of  ap- 
prentices. 
89.  Further  provisions  in  cases  of  hiring 

out  free  persons  of  color  for  fines, 

&c. 


77. 


78. 


80. 


81. 


82. 


83. 


85. 


86. 


87. 


88. 


/  s  4  r. 


^3 


-    f 


7 


Chap.  CXI.]  slaves,  etc.  573 

1.  Bk  it  enacted  by  the  General  Assembly  of  the  State  of  Js^orth 
Carolina,  and  it  is  hereby  enacted  by  the   authority  of  the  same, 

That  each  and  every  negro,  mulatto  or  person  of  color,  imported  Negroes,  mu- 
into  this  State  from  any  foreign  port  or  place,  for  a  slave,  or  to  be  lattoes,  or  per- 
held  to  service  or  labor,  since  the  first  day  of  January  in  the  year  imported  con- 
one  thousand  eight  hundred  and  eight,  contrary  to  the  provisions  ^^?'^  ^°  ^^^  , 

r  r-  •  1     1  A  1  •  I  •      1       •  .        ol  congress,  to 

01  an  act  ot  congress,  entitled  "  An  act  to  prohibit  the  importation  be  sold  for  the 
of  slaves  into  any  port  or  place  within  the  jurisdiction  of  the  United  gj^j"^  *^^ 
States,  from  and  after  the  first  day  of  January,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  eight,"  approved  the  second 
day  of  March,  one  thousand  eight  hundred  and  seven,  (except  as 
hereinafter  provided,)  shall  be  sold  and  disposed  of  for  the  use  of 
the  State. 

2.  The  sheriff  of  each   county  of  this   State  shall,  and  he  is  Sheriff's  duty 
hereby  authorized  and  required  to  seize  and  take  into  his  posses-  selling. 
sion  every  negro,  mulatto,  and  person  of  color,  of  the  description 
aforesaid,  as  well  those  which  have  been,  as  those  which  shall  be 
imported  as  aforesaid,  found,  or  which  shall  be  found  in  the  county 

of  which  he  is  sheriff ;  and  such  negro,  mulatto  or  person  of  color, 
so  taken  in  his  possession,  to  sell  and  dispose  of  at  public  sale, 
(giving  previous  notice  of  fifteen  days  of  the  time  of  such  sale,  by 
advertisement  in  one  of  the  newspapers  published  in  this  State,)  to 
the  highest  and  best  bidder,  at  a  credit  of  six  months,  the  purchaser 
entering  into  bond  with  security,  to  be  approved  by  said  sheriff,  for 
the  payment  of  the  purchase  money,  which  money,  when  received, 
the  sheriff  so  receiving  shall  account  for  and  pay  to  the  treasurer 
of  this  State,  after  deducting  from  the  gross  amount  thereof  the 
several  sums  hereinafter  authorized  by  him  to  be  retained  :  the 
moneys  collected  by  virtue  of  this  act  shall  be  paid  and  accounted 
for  at  the  treasury,  by  the  several  sheriffs,  at  the  same  time  and 
under  the  same  regulations  and  penalties,  as  prescribed  in  account- 
ing for  and  paying  the  public  taxes. 

3.  Where  any  such  negro,   mulatto  or  person  of  color,   as   is  Sheriff's  duty- 
above  mentioned,  shall  abscond,  or  so  conceal  him  or  herself  that  ^J^^^j.^gg^^^. 
he  or  she  cannot  be  taken  by  the  sheriff,  said  sheriff  may  offer  a  abscond. 
reward,  not  exceeding  one  fifth  part  of  the  value  of  such   negro, 

mulatto  or  person  of  color,  to  any  person  or  persons,  who  shall 
apprehend  and  deliver  him  or  her  to  the  sheriff  or  his  deputy,  and 
shall  then  sell  said  negro,  mulatto  or  person  of  color  as  above  di- 
rected ;  or  such  sheriff  may  in  his  discretion  proceed  to  advertise 
and  sell  such  negro,  mulatto  or  person  of  color,  as  directed  in  the 
foregoing  section,  without  offering  a  reward,  although  such  negro, 
mulatto  or  person  of  color  may  not  be  in  the  custody  or  possession 
of  said  sheriff  at  the  time  of  said  sale. 

4.  Whenever  any  person  shall  discover  any  negro   of  the   de- ^^^'■.^''"s  giving 
scription  aforesaid  in  any  county  of  this  State,  and  give  such  notice  negroes,  &c.  to 
thereof  to  the  sheriff  of  the  county,  that  he  shall,  in  consequence  h^^f^o."^  fifth 
of  such  information,  obtain  the  said  negro,   mulatto   or  person  of 

1.  1816,  c.  910,  s.  1. 

2.  1816,  c.  910,  s.  2. 

3.  1816,  c.  910  S.  3. 

4.  1816,  c.  910,  s.  4. 


574 


SLAVES,    ETC. 


[Chap.  CXI. 


Sales  to  be 
made  at  the 
court  house, 
and  sheriff  to 
give  bills  of 
sale. 


Sheriff's  com- 
missions, &c. 
for  making 
such  sales. 


Certain  former 

Eurchases  con- 
rmed. 


color,  the  person  or  persons,  giving  such  information,  shall  be  en- 
titled to  receive  from  the  said  sheriff  one  fifth  part  of  the  sum,  for 
which  said  negro,  mulatto  or  person  of  color  shall  afterwards  sell, 
to  be  retained,  as  well  as  the  reward  offered,  as  directed  in  the 
preceding  section,  out  of  the  proceeds  of  the  sale,  and  paid  to 
the  person  entitled  to  the  same  by  the  sheriff. 

5.  All  sales  by  virtue  of  this  act  shall  be  made  at  the  court  house 
of  each  respective  county  ;  and  the  sheriff  selling,  or  his  succes- 
sor, in  case  of  his  death,  resignation  or  removal  from  office,  shall 
execute  and  deliver  to  the  purchaser,  his  executors,  administrators 
or  assigns,  a  bill  of  sale  for  such  negro,  mulatto  or  person  of  color 
so  sold,  which  shall  vest  in  the  purchaser  the  absolute  property  in 
the  same,  and  the  title  so  acquired  shall  not  be  affected  by  the 
want  of  advertisement  or  by  any  other  irregularity  in  such  sale  or 
proceedings  on  the  part  of  the  sheriff. 

6.  Every  sheriff,  selling  as  aforesaid,  may  retain  out  of  the  pur- 
chase money  of  such  negro,  mulatto  or  person  of  color,  so  sold, 
beside  the  rewards  above  directed  to  be  paid,  and  beside  the  rea- 
sonable charges,  at  which  the  said  sheriff  shall  be,  in  keeping  such 
negro,  mulatto  or  person  of  color  till  the  day  of  sale,  and  in 
advertising  as  aforesaid,  the  further  sum  of  six  per  centum  on  the 
gross  proceeds  of  such  sale,  which  shall  be  in  full  compensation 
for  his  services. 

7.  Where  any  person  or  persons  shall  have  purchased,  before  the 
eighteenth  of  November,  one  thousand  eight  hundred  and  sixteen, 
for  a  fair  and  valuable  consideration,  any  such  negro,  mulatto  or 
person  of  color,  so  imported  into  this  State,  contrary  to  the  pro- 
visions of  the  said  act  of  congress,  of  or  from  any  person  or  per- 
sons originally  importing  such  negro,  mulatto  or  person  of  color, 
or  the  master,  agent  or  attorney  of  such  importer  or  .importers, 
and  such  sale  or  purchase  shall  not  be  merely  colorable  to  defeat 
or  evade  the  provisions  of  this  act,  in  that  case  the  sheriff,  in  whose 
county,  such  negro,  mulatto,  or  person  of  color  is  found,  and  the 
sheriff  of  the  county  where  such  purchaser  resides,  shall  not  pro- 
ceed to  sell  such  negro,  mulatto  or  person  of  color  :  but  upon 
due  proof  being  made  of  such  sale  and  purchase  before  the  chief 
justice,  or  other  justice  of  the  supreme  or  superior  courts,  such 
chief  or  other  justice  shall  give  to  such  purchaser  a  certificate 
under  his  hand,  directed  to  the  sheriff  of  the  county  where  such 
negro,  mulatto  or  person  of  color  is,  or  the  purchaser  resides, 
specifying  the  negro,  mulatto  or  person  of  color,  with  respect  to 
which  such  proof  shall  have  been  exhibited  ;  and  on  receipt  of 
such  certificate,  such  sheriff  shall  execute  and  deliver  to  such  pur- 
chaser or  his  representative,  a  bill  of  sale  for  such  negro,  mulatto 
or  person  of  color  ;  and  the  benefit  of  this  section  shall  extend 
to  the  assignee  or  assignees  of  such  purchaser,  as  well  as  to  such 
purchaser  and  his  representatives. 


.5.   1816,  c.  910,  s    5. 

6.  1816,  c.  910,  s.  6. 

7.  1816,  c.  910,  s.   7. 


Chap.  CXI.]  slaves,  etc.  575 

8.  The  foregoing  provisions  of  this  act  shall  extend  and  apply  The  issue  of 
to  every  negro,  mulatto  and  person  of  color,  the  issue  of  any  ne- "j^^or^ted,  in- 
gro,  mulatto  or  person  of  color,  so  imported   as  aforesaid.  eluded  in  the 

9.  Every  person  who  shall  introduce  into    this  State  any  slave,  y°sif°s"°^'^°" 
from  any  of  the  United   States,  which    have    passed  laws    for  thepenahyfor 
liberation  of  slaves,  shall,  on  complaint  thereof  before  any  iustice^""?^""  ^l^"*"^* 

■*  "  iroiTi  cGrtELin 

of  the  peace,  be  compelled  by  such  justice  to  enter  into  bond  states, 
with  sufficient  surety,  in  the  sum  of  one  hundred  dollars  current 
money  for  each  slave,  for  the  removing  of  such  slave  to  the  State 
from  whence  such  slave  was  brought,  within  three  months  there- 
after, the  penalty  to  be  recovered,  one  half  for  the  use  of  the 
State,  the  other  half  for  the  use  of  the  prosecutor,  on  failure  of  a 
compliance  therewith  ;  and  the  person  introducing  such  slaves,  shall 
also,  in  case  of  such  failure,  forfeit  and  pay  the  sum  of  two  hun- 
dred dollars,  to  be  recovered  by  any  person  suing  for  the  same,  and 
applied  to  his  own  use. 

10.  All  persons  who  may  apprehend  and    confine  in  jail  or  de- Reward  for 
liver  to  the  owner,  any  runaway  slave,  for  whom    a  greater  reward  aways."^  ^^'^' 
shall  not  have  been  offered,  shall  be  entitled  to  recover  and  receive 

from  the  owner  of  such  slave  the  sum  of  three  dollars,  where  the 
owner  resides  in  the  county  in  which  such  slave  may  be  appre- 
hended, and  five  dollars,  if  he  reside  beyond  the  hmits  of  such 
county  ;  and  where  the  runaway  slave  thus  apprehended  shall  be 
lodged  in  jail,  it  shall  be  the  duty  of  the  jailer  to  tax  the  said 
reward  on  each  slave  against  such  owner,  and  collect  the  same 
with  his  prison  fees. 

11.  If  any    negro,  who    shall   be  taken  up   as  a    runaway,    and  Runaways  to 
brought  before  any  justice  of  the  peace,  will  not  declare  the  name  to  ja°iH™er- 
of  his  or  her  owner,  such  justice  shall   in    such  case,  and    he   is  tain  cases,  and 
hereby  required,  by  a  warrant  under  his  hand,  to   commit  the  said  gfyen! 
negro  slave  to  the  jail  of  the  county  wherein   he  or   she   shall  be 

taken  up  ;  and  the  sheriff  or  under  sheriff  of  the  county,  into 
whose  custody  the  said  runaway  shall  be  committed,  shall  forthwith 
cause  notice  in  writing  of  such  commitment  to  be  ^set  up  on  the 
court  house  door  of  the  said  county,  and  there  continued  during 
the  space  of  two  months  ;  in  which  notice  a  full  description  of 
the  said  runaway  and  his  clothing  shall  be  particularly  set  down. 
And  every  sheriff,  failing  to  give  such  notice  as  herein  is  directed, 
shall  forfeit  and  pay  ten  dollars  ;  which  said  forfeiture  shall  and 
may  be  recovered  with  costs  before  any  justice  of  the  peace  in 
the  county,  in  which  such  slave  is  committed  ;  the  one  moiety 
whereof  shall  be  to  the  county,  and  the  other  moiety  to  the  person 
who  shall  sue  for  the  same. 

12.  Where  any  runaway  slave  shall  be  brought  before  a  justice  of  Duty  of  a  jus- 
the  peace,  said  justice  shall  commit  the  said  runaway  to  the  constable  r^naway^is^ 
of  his  district,  by  his  warrant,  and  therein  order  such  constable  to  brought  before 
convey  the  said  runaway  to  his  home  or  the  public  jail,  and  may  ^i^of^he 


8. 

1816, 

c.  910,  Sl  8. 

9. 

1786, 

c.  249. 

10. 

1819, 

c  1014.— 1823,  c.  1227 

11. 

1741, 

c.  35,  s.  25. 

12. 

1741, 

c.  35,  s.  30  and  31. 

576  SLAVES,  ETC.  [Chap.  CXI. 

constable  to      also,  if  he  think  proper,  order  the  said  constable  to  2:ive  such  run- 

whom  sued  i      ,      -^         ^  j-         ^i  •  ^      •  ^i  -j   •      .• 

runaway  may    ^way  as  many  lashes,  not  exceeding  thirtynine,  as  the  said  justice 

be  committed,  may  in  his  discretion  direct.     Every  constable,  on   the  receipt  of 

such  runaway  shall  give  a  receipt  for  him  or  her,  and,  upon  failure 

to  execute  such  warrant  or  give  such  receipt,  shall  forfeit  and  pay 

two  dollars  for  the  use  of  the  county,  to  be  recovered   before  any 

justice  of  the  county  where  such  constable  shall  reside. 

Penalty  on  any      13.   If  any  sheriff,  under  sheriff  or  constable,  shall  set  to  work, 

employing  the  employ  Or  let   out  to  hire  any  runaway  slave,    committed   to  the 

runaway,  or      custody  of  any  of  them,  or  shall  detain  such  runaway  longer  in  his 

lon^<?er  thaiT     ^^  their  custody  than  by  this  act  is  directed,  he  or  they  so  offending 

this  act  directs,  shall  forfeit  and  pay  ten  dollars,  to  be  recovered  before  any  justice 

him°to  escaped  ^^  ^^^  peace  having  jurisdiction  thereof :  one    moiety  whereof  to 

be  paid  to  the  county,  where  the  offence  shall   be  committed,  and 

the  other  to  him  or  them,  who  shall  sue  for  the  same  ;  and  if  any 

sheriff  or  his  under  sheriff,  or  any  constable,  into  whose  hands  any 

runaway  shall  be  committed,  by  virtue  of  this  act,  shall  negligently 

or  wilfully   suffer  such  runaway  to  escape,  the   said    sheriff,  under 

sheriff  or  constable  shall  be  liable  to  the  action  of  the  party  grieved, 

for  recovery  of  his  damages  at  the  common  law  with  costs. 

Keepers  of  fer-      14,   The  keepers  of  ferries  within  this  State    shall   give  imme- 

ries  to  give  ,.  ^    ,,  ,  ,  1     1     •  •  1  i        •  1 

passage  to  con-  diate  passage  to  ail  constables  and  their   assistants,  charged   with 
stables,  &c.       conducting  any  runaway  or  runaways,  either  to  the  public   iail  or 

conveymg  run-  1  1  -i  i- 

aways.  to  such  runaway  or  runaways    master    or  owner,  without   charging 

such  constable  or  their  assistants  for  their  ferriage,  either  going  or 
returning  ;  but  all  such  ferriages  of  constables  and  their  assistants 
shall  be  paid  by  the  county,  where  such  ferry  keepers  respectively 
live,  and  levied,  as  aforesaid,  upon  the  respective  masters  or 
owners  of  such  runaways. 
Notice  to  be  15.  When  any  runaway,  whose  owner  is   supposed  to  be  resi- 

failer  incei-min  ^^"^  ^"  ^"3^  Other  State,  shall  be  committed  to  any  public   jail  in 
cases',  in  the     this  State,  the  keeper  of  the  said  jail  shall,  by  the  first  opportunity 
State  Gazette,  g^^^j,  g^^^]^  commitment,  send  a  description  of  such  negro   or  run- 
away, together  with  the  account  of  the  time  of  commitment,  and 
the  county  where  such  runaway   is  committed,  to -the  press,  to  be 
advertised  in  the  State  Gazette,  for  which  he  shall  be  reimbursed 
by  the  owner  of  the  said  slave  or  runaway. 
Runaway  ig.   Whenever  any  negro  slave  shall  be  taken  up  in  this  State  as 

sold,  in  certain  ^  runaway,  and  confined  in  any  jail  for  the  space  of  twelve  months, 
cases,  by  order  and  the  apprehension  and  confinement  of  said  slave  have  been 
court^  '^°""  ^  advertised  in  the  State  Gazette  at  least  six  months,  and  the  owner 
does  not  apply  to  prove  property  in  said  time,  then  it  shall  be 
lawful  for  the  court  of  pleas  and  quarter  sessions  of  the  county,  in 
which  said  runaway  is  confined,  to  command  their  sheriff  to  expose 
said  negro  slave  to  pubhc  sale  for  ready  money,  giving  three  months 
notice  in  some  public  newspaper  in  this  State,  at  the  court  house 
door,  and  at  two  other  public  places  in  the  said  county,  of  the 
time  and  place  of  sale,  and  of  the  circumstances  under  which  the 
said  slave  is  to  be  sold. 

13.  1741,  c,  35,  s.  32. 

14.  1741,  c.  35,  s.  33. 

15.  1741,  C.  35,  S.  34. 

IG.  1818,  C.  981,  s.  1.  ■ 


Chap.  CXI.]  slaves,  etc.  577 

17.  The  said  sheriff  shall  be  allowed  two  and  a  half  per  centum  sheriff's  com- 
on  the  amount  of  sales  made  under  the  preceding  section.  ^cTsale.""^ 

18.  The  bill  of  sale  of  the  sheriff  shall  vest  in  the  purchaser  an  sheriff  to  give 
absolute  right  to  the  said  slave  ;  and  said  sheriff  is  hereby  directed  ^^'^^  °^  ^^j^- 
to  pay  over  the  residue  of  the  amount  of  sales,  after  deducting  his  such  sale,  how 
commissions  and  prison  charges,  to   the  county  trustee,  to  be  ap-  appropriated, 
plied  as  county  taxes  for  the  use  of  said  county. 

19.  Upon  petition  of  the  owner  of  said   slave   or  slaves  to  the  Owner  may 
court  of  the  county,  where  the  proceeds  of  said  sale  are  deposited,  mone^on'peti- 
and  upon  satisfactory  evidence  of  the  right  of  property  of  said  pe-  tion. 
titioner  or  petitioners  to  said  slave,  the  said  court  shall  direct  the 
payment  to  the  said  petitioner  or  petitioners  of  the  sum  paid  into  the 

county  treasury,  taking  bond  and  security  from  such  petitioner  or 
petitioners,  when  they  think  proper,  payable  to  the  State  of  North 
Carolina,  to  refund  said  money  with  interest  to  the  real  owner  of 
said  slave,  should  it  thereafter  appear  that  such  petitioner  or  peti- 
tioners were  not  the  real  owners  of  such  slave. 

20.  If  any  runaway  slave,  confined  in  any  jail  in  this  State,  his  Jay  thTex-  ^° 
or  her  owner  being  unknown,  should  die,  or  by  the  regular  process  penses  of  run- 
of  law  be  removed  from  said  jail,  before  a  sale  of  such  runaway  's  ^J^^^^ggg'^g^" , 
effected  according  to  the  provisions  of  this  act,  then  and  in  either  expenses  to  be 
of  these  cases,  it  shall  be  the  duty  of  the  court  of  pleas  and  quarter  [^g°J^^j^gj.^j^gj^ 
sessions  of  the  county  where  the  said  slave  was  confined,  to  direct  he  becomes 
the  county  trustee  to  pay  aU  the  expenses  of  his  or  her  imprison-  ^'^°^"' 
ment  out  of  the  county  funds  :   Provided,  that  the  jailer  shews  to 

the  court  that  he  has  complied  with  the  directions  of  this  act  re- 
quiring the  advertisement  of  runaways.  And  when  such  expenses 
have  been  so  paid  by  the  county  trustee,  if  the  owner  should  there- 
after become  known,  it  shall  be  the  duty  of  the  said  trustee  to  re- 
cover, for  the  use  of  the  county,  from  the  owner  or  his  represen- 
tative, the  amount  he  may  have  paid  on  account  of  the  said 
runaway. 

21 .  If  any  slave  shall  be  guilty  of  producing  any  forged  free  pass,  flfJed^ ^.f^'^^'^° 
or  certificate,  he  or  she  so  offending,  shall,  on  conviction  before  papers,  to  be 
any  justice  of  the  peace,  be  sentenced  to  receive  as  many  lashes  "^^^pp^^- 

on  his  bare  back,  not  exceeding  thirtynine,  as  the  said  justice  may 
in  his  discretion  direct. 

22.  Whereas  many  times  slaves  runaway  and   lie   out,   hid  and  Ij™away 
lurking  in  swamps,  woods,  and  other  obscure  places,  killing  cattle  omlaw^'^m  ^ 
and  hogs,  and  committing  other  injuries   to  the  inhabitants  of  this  certain  cases. 
State  ;  in  all  such  cases,  upon  intelligence  of  any  slave  or  slaves 

lying  out  as  aforesaid,  any  two  justices  of  the  peace  for  the  county 
wherein  such  slave  or  slaves  is  or  are  supposed  to  lurk  or  do  mis- 
chief, shall,  and  they  are  hereby  empowered  and  required  to  issue 
proclamation  against  such  slave  or  slaves  (reciting  his  or  their 
names,  and  the  name  or  names  of  the  owner  or  owners,  if  known,) 

17.  1818,  c.  981,  s.  2. 

18.  1818,  0.  981,  S.  3. 

19.  1818,  c.  981,  s.  4. 

20.  1830,  c.  17,  s.  1  and  2. 

21.  1791,  c.  335,  s,  2. 

22.  1741,0.  35,  s.  40. 

VOL.  I.  73 


578 


SLAVES,     ETC. 


[Chap.  CXL 


gun 


thereby  requiring  him  or  them,  and  every  of  them,  forthwith  to 
surrender  him  or  themselves  ;  and  also  to  empower   and  require 
the  sheriff  of  the  said  county  to   take  such  power  with  him,  as  he 
shall  think  fit  and  necessary,  for  going  in  search  and  pursuit  of,  and 
efiectually  apprehending  such  out  lying  slave  or  slaves,  which  pro- 
clamation shall  be  pubUshed  at  the  door  of  the  court  house,  and  at 
such  other  places  as  said  justices  shall  direct,  and  if  any  slave  or 
slaves,   against  whom  proclamation  hath  been    thus  issued,   stay 
out  and  do  not  immediately  return  home,  it  shall  be  lawful  for  any 
person  or  persons  whatsoever  to  kill  and   destroy  such  slave  or 
slaves,  by  such  ways  and  means  as  he  shall  think  fit,  without  accu- 
sation or  impeachment  of  any  crime  for  the  same. 
Slaves  not  to         23.   No  slave  shall  go   armed  with  gun,  sword,  club,  or  other 
go  armed,  nor   -^eapon,  or  shall  keep  any  such  weapon,  or  shall  hunt  or  range  with 
a  gun  in  the   woods,  upon   any  pretence  whatsoever  ;  and  if  any 
slave  shall  be  found  offending  herein,  it  shall  and  may  be  lawful  for 
any  person  or  persons  to  seize,  and  take  to  his  own  use  such  gun, 
sword  or  other  weapon,  and  to  apprehend  and  deliver  such  slave 
to  the  next  constable,  who  is  enjoined  and   required,  without  fur- 
ther order  or  warrant,  to  give   such  slave  twenty  lashes  on  his  or 
her  bare  back,  and  to  send  him  or   her  home  ;  and  the  master  or 
owner  of  such  slave,  shall  pay  the  taker  up   of  such   armed  slave 
the  same  reward,  as  by  this  act  is   allowed  for  taking   up   run- 
aways. 
Slaves  not  to  go      24.  No  slave  shall  go  from   off  the   plantation  or  seat  of  land, 
ter's  plantation  whcrc  such  slave  shall  be   appointed  to  live,  without  a  certificate 
without  a  writ- of  leave  in  writing  for  so   doing,  from  his  or  her  master  or  over- 
seer. 

25.  No  slave  shall  be  permitted,  on  any  pretence  whatever,  to 
raise  any  horses,  cattle,  hogs  or  sheep,  but  all  such  belonging  to 
any  slave  or  in  any  slave's  mark,  shall  be  seized  and  sold  by  the 
county  wardens,  as  directed  in  the  act,  entitled  "  An  act  con- 
cerning the  poor." 

26.  In  case  any  slave,  who  shall  not  appear  to  have  been  pro- 
perly clothed  and  fed,  shall  be  convicted  of  stealing  any  corn, 
cattle,  hogs  or  other  goods  whatsoever  from  any  person,  not  the 
owner  of  such  slave,  such  injured  person  shall  and  may  maintain 
an  action  of  trespass  against  the  master,  owner,  or  possessor  of 
such  slave  in  the  superior  or  county  court,  and  shall  recover  his  or 
her  damages  with  costs  of  suit. 

27.  If  any  slave  shall  teach,  or  attempt  to  teach  any  other  slave 
to  read  or  write,  the  use  of  figures  excepted,  he  or  she  may  be 
carried  before  any  justice  of  the  peace,  and,  on  conviction  thereof, 
shall  be  sentenced  to  receive  thirtynine  lashes  on  his  or  her  bare 
back. 

28.  If  any  negro  slave  shall  presume  to  sell  any  spirituous  liquors, 


ten  permit. 

Slaves  not  to 
raise  stock. 


Owners  of 
slaves  not 
properly  feed- 
ing them,  &c. 
to  be  liable  for 
their  stealing 
corn,  &c. 


Slaves  not  to 
teach  each 
other  to  read, 
&c. 


Slaves  not  to 
sell  spirituous 
liquors. 


23.  1741,  o.  35,  s.  35,  36  and  37.— 1S31,  c.  44. 

24.  1741,  c.  35,  s.  38. 

25.  1741,  c.  35,  s.  39.— 1779,  c.  152,  S.  1. 

26.  1753,  c.  53,  s.  6. 

27.  1830,  c.  6,  s.  2. 

28.  1818,  c.  974. 

V 


Chap.  CXL]  slaves,  etc.  579 

by  the  retail  or  otherwise,  such  slave  so  offending,  shall  be  taken 
before  a  magistrate  of  the  county,  where  he  may  have  committed 
such  offence,  and  if  found  guilty,  shall  receive  not  exceeding 
thirtynine  lashes  on  his  or  her  bare  back. 

29.  It  shall  not  be  lawful  for  any  slave  or  slaves  to  play  at  any  Slaves  not  to 
game  of  cards,  dice,  nine-pins,  or  any  game  of  hazard  or  chance,  |ame^for"^ 
for  any  money,  liquor,  or  any  kind  of  property,  whether  the  same  money,  &c. 
be  staked  or  not  ;  and  any  slave,  so  offending,  shall,  upon  convic- 
tion before  a  justice  of  the  peace,  receive  a  whipping  on  liis  or  her 

bare  back,  not  exceeding  thirtynine  lashes. 

30.  Any  slave,  convicted  of  setting  fire  to   any  woods,  under  Penalty  on 
circumstances,   which,  if  the   offence  were   committed   by  a  free  f^l^t^e  woods!" 
person,  would  subject  such  free  person  to  a  penalty,  shall  be  or- 
dered to  receive  on  his  bare  back  thirtynine  lashes. 

31.  It  shall  not  be  lawful,  under  any  pretence  whatever,  for  anv^}?^^®]^"^*^".^® 
person  or  persons  to  allow  his,  her  or  their  slave,  or  any  slave  un- their  own  time, 
der  his,  her  or  their  command  or  direction,  to  hire  his,  her  or 

their  time,  under  the  penalty  of  forfeiting  the  sum  of  forty  dollars 
for  each  and  every  offence,  to  be  recovered  before  any  justice  of 
the  peace,  to  the  sole  benefit  of  the  party  prosecuting.  And  it  proceedings  in 
shall  be  part  of  the  duty  and  charge  of  the  grand  jury,  both  in  the  suet  cases, 
county  and  superior  courts,  to  make  presentment  of  any  slave,  who 
shall  be  permitted  by  his  or  her  master  or  mistress  to  go  at  large,  hav- 
ing hired  his  or  her  time,  and  on  such  presentment  being  made,  the 
court  shall  issue  an  order  to  the  sheriff  of  the  county,  where  such 
negro  may  be,  to  take  up  such  negro,  and  him  or  her  safely  secure 
so  that  he  can  have  such  negro  before  the  next  county  court,  and 
it  shall  be  the  duty  of  the  sheriff  to  give  the  owner  notice  thereof, 
(if  residing  within  the  county)  at  least  ten  days  before  the  sitting 
of  the  court ;  and  the  said  court  shall  empanel  a  jury  to  inquire 
and  try  the  truth  of  such  presentment,  on  which  trial  or  inquiry 
the  owner  may  produce  evidence  as  in  other  cases  ;  and  if  the 
jury  shall  find  that  the  said  presentment  is  true,  such  negro  shall 
then  be  hired  out  by  the  sheriff  of  the  county,  at  public  vendue, 
for  the  space  of  one  year,  taking  bond  with  security  for  the  same, 
payable  to  the  State  of  North  Carolina,  for  the  use  of  the  poor  of 
said  county,  subject  to  the  payment  of  any  charges  respecting  said 
negro  :  Provided  always,  that  when  the  owner  resides  out  of  the 
county,  the  sheriff  shall  give  notice  by  advertisement  in  the  nearest 
gazette,  for  at  least  two  weeks,  where  a  gazette  shall  be  published 
in  the  county  in  which  the  sheriff  shall  live,  but  in  other  cases  the 
sheriff  shall  advertise  the  same  at  the  court  house  of  the  county, 
in  which  the  said  slave  shall  be  presented  or  shall  be  taken  up. 
Provided  alivays,  that  when  any  person  who  shall  hire  the  negro 
of  an  orphan,  shall  hire  to  such  slave  his  or  her  time,  the  slave 
shall  only  be  hired  out  under  this  section  for  such  time,  or  the 
remainder  of  the  time,  as  said  slave  may  have  been  hired  to  such 
person. 

29.  1830,  c.  10,  s.  1. 

30.  1777,  C.  123,  s.  3. 

31.  1794,0.  406,  S.  1. 


580  SLAVES,  ETC.  [Chap.  CXI. 

Slaves  not  to  32.  It  shall  not  be  lawful  for  any  slave  to  go  at  large  as  a  free 
Fre^men^^^  ^^  man,  cxercising  his  or  her  own  discretion  in  the  employment  of 
his  or  her  time  ;  nor  shall  it  be  lawful  for  any  slave  to  keep  house 
to  him  or  herself  as  a  free  person,  exercising  the  like  discretion  in 
the  employment  of  his  or  her  time  ;  and  in  case  the  owner  of  any 
slave  consent  or  connive  at  the  commission  of  such  offence,  he  or 
she  so  offending  shall  be  subject  to  indictment,  and  on  conviction 
be  fined  in  the  discretion  of  the  court,  not  exceeding  one  hundred 
dollars  :  Provided,  that  nothing  herein  shall  be  construed  to  pre- 
vent any  person  permitting  his  or  her  slave  or  slaves  to  live  or 
keep  house  upon  his  or  her  land,  for  the  purpose  of  attending  to 
the  business  of  his  or  her  master  or  mistress. 

Negroes,  &c.         33.  ]^q  person  shall  grant  permission  for  any  meeting  or  meet- 
not  to  meet  for  .  c     i  c       i  1         /■        i  1  ■       1 
the  purpose  of  mgs  01  the  negroes  01  others,  or  people   01   color  at  his,  her  or 

dancing,  &.c.  their  houses,  or  on  his,  her  or  their  plantation  for  the  purpose  of 
written  permit,  drinking  or  dancing,  under  the  penalty  of  forfeiting  twenty  dollars, 
on  conviction  of  such  offence,  in  any  court  having  jurisdiction 
thereof,  unless  such  slave  shall  have  a  special  permit  in  writing  or 
otherwise  from  his  or  her  owner  for  that  purpose  ;  the  same  to  be 
recovered  by  any  person  suing  for  the  same  in  the  name  of  the 
State. 
Slaves,  &c.  not  34.  It  shall  not  be  lawful  under  any  pretence,  for  any  slave  or 
pubUc  "^  free  person  of  color  to  preach  or  exhort  in  public,  or  in  any  man- 
ner to  officiate  as  a  preacher  or  teacher  in  any  prayer  meeting,  or 
other  association  for  worship,  where  slaves  of  different  families  are 
collected  together  ;  and  if  any  free  person  of  color  shall  be  thereof 
duly  convicted  on  indictment,  before  any  court  having  jurisdiction 
thereof,  he  shall  for  each  offence  receive  not  exceeding  thirtynine 
lashes  on  his  bare  back  ;  and  where  any  slave  shall  be  guilty  of  a 
violation  of  this  section,  he  shall,  on  conviction,  before  a  single 
magistrate,  receive  not  exceeding  thirtynine  lashes  on  his  bare 
back. 

Conspiracy  of       35 _   jf  Q^y  number  of  slaves  shall,  at  any  time   hereafter,  con- 
slaves,  how  11-  ■  11  1      •  •  1111 
punishable.       sult,  advise  or  conspire  to  rebel  or  make  insurrection,  or  shall  plot 

or  conspire  the  murder  of  any  person  or  persons  whatsoever,  every 
such  consulting,  plotting  or  conspiring,  shall  be  adjudged  and 
deemed  felony,  and  the  slave  or  slaves,  convicted  thereof  in  the 
manner  prescribed  by  law,  shall  suffer  death,  or  be  transported  as 
hereinafter  provided. 
Insurrection  of  36.  If  any  slave  be  found  in  a  state  of  rebellion  or  insurrection, 
pu^^shable"^  or  shall  agree  to  join  any  conspiracy  or  insurrection,  or  shall  pro- 
cure or  persuade  others  to  join  or  enlist  for  that  purpose,  or  shall 
knowingly  and  wilfully  aid  or  assist  any  slave  or  slaves  in  a  state 
of  rebellion,  or  engaged  in  a  conspiracy  to  make  insurrection,  as 
by  furnishing  or  agreeing  or  promising  to  furnish  such  persons  with 
arms,  ammunition  or  any  other  article  for  their  aid  and  support, 
every  slave,  so  offending  and  being  thereof  legally  convicted,  shall 

32.  1831,  c.  4,  s.  2. 

33.  1794,  c.  406,  S  2. 

34.  1831,  0.4,  s.  1. 

35.  1802,  c.  618,  s.  1. 

36.  1802,  C.  618,  s.  2. 


Chap.  CXL]  slaves,  etc.  581 

be  adjudged   guilty  of  felony,  and  shall  sufter  death  or  be  trans- 
ported as  hereinafter  provided. 

37.  If  any  free  person  shall  join  in  any  conspiracy,  rebellion  or  Free  p^ersmis 
insurrection   of  the   slaves,  or  shall   agree  to  join   any  such  con-  spiracy,  &c.  of 
spiracy,  rebellion  or  insurrection,  or  shall  procure   or  persuade  f^^^^^^^_ 
others  to  join  or   enlist  for   that  purpose,  or  shall  knowingly  and 

wilfully  aid  or  assist  any  slave  or  slaves  in  a  state  of  rebellion,  or 
engage  in  a  conspiracy  to  make  insurrection,  as  by  furnishing,  or 
agreeing  or  promising  to  furnish  such  slave  with  arms,  ammunition 
or  any  other  article  for  their  aid  and  support,  every  free  person, 
so  offending  and  being  thereof  legally  convicted,  shall  be  adjudged 
guilty  of  felony,  and  shall  suffer  death  without  benefit  of  clergy. 

38.  In  all  cases,  wherein  a  slave  shall  be  prosecuted  for  ^^.^  ^^jf ^^^j,^^^"*"^ 
offences  described  in  the  thirtyfifth  and  thirtysixth  sections  of  this  ^^f^^^  i^'^^'ages 
act,  the  court  may  take  for  evidence  the  oath  of  one  or  more  cred-  of^insurrection, 
ible  witnesses,  the  confession  of  the  offender,  freely  given,  without 

anv  undue  influence  either  by  terror  or  persuasion,  or  the  testi- 
mony of  a  negro  or  other  person  of  color,  bond  or  free  ;  but  in 
all  cases,  where  the  testimony  of  one  negro  or  person  of  color  shall 
be  admitted,  the  same  shall  not  be  deemed  conclusive  and  sufficient 
to  convict  the  person  charged,  unless  the  same  shall  be  supported 
by  such  pregnant  circumstances,  as  to  the  jury  on  such  trial  shall 
appear  convincing  proof,  when  taken  together  with  the  testimony 
of  such  negro  or  person  of  color. 

39.  When  any  slave  shall  be  convicted  of  either  of  the  felonies.  Slaves  convict- 
created  by  the  thirtyfifth  and  thirtysixth  sections  of  this  act,  he  or  spiracy°&c.  to 
she  shall  suffer   death,  without  benefit  of  clergy,  or   at   the   dis- suffer  death  or 
cretlon  of  the  court,  shall  be   sentenced  to   be  transported  out  o^^<^^^^^^vonea. 
this  State,  and  beyond  the  limits  of  the  United  States,  under  such 
restrictions  and  upon  such  conditions,  as  good  pohcy  and  the  pub- 
lic safety  at  the  time  shall  require. 

40.  Whenever  a  slave  shall  be  transported,  in  consequence  of  ['^^|;^Jj;[^J^^^^^^^ 
the  provisions  of  this  act,  either  by  the  owner  or   the  State,  and  from  trauspor- 
such  slave  shall  ever  thereafter  voluntarily  return  to  and  be  found  f^'^^'^  to  suffer 
ill  the  State,  such  slave  shall  suffer  death  without  benefit  of  clergy, 

upon  due  conviction   thereof;  and  if  any  slave,  so  transported,  if^brought  by 
shall  be  brought  into  any  county  in  this  State  by  his  or  her  master  &c"to"or- 
or  mistress,  or  by  any  other  person,  such  slave  shall  be  forfeited  feited. 
(on  proof  thereof)  to  the  county  into  which  the  same  may  be  brought, 
and  the  said  slave'  shall  be  again  transported  by  order  of  the  county 
court,  and  sold  for  the  use  of  the  county. 

41.  When  any  slave  shall  commit  any  misdemeanor  or  offence,  slaves,  for 
which  is  not  by  law  declared  capital,  and  which,  in  the  opinion  of  {;i^f^°f^"^7' 
the  justice  or  justices,  before  whom   such  offending  slave  may  be  fore  a  justice 
carried  for  examination,  shall  appear  to  be  of  so  trivial  a  nature,  as  of  the  peace. 
not  to  deserve  a  greater  punishment   than  a  single  justice  of  the 

peace  is  empowered  by  this  act   to   inflict,  such  justice  shall,  and 


37.  1802,  c.  618,  s.  3. 
33.  1802,  c.  618,  s.  4. 

39.  1802,  c.  C18,  s.  5.  — 1819,  c.  1009. 

40.  1802,  c.  618,  s.  6. 

41.  17S3,  C.  190,  s.  2  and  3. 


582  SLAVES,  ETC.  [Chap.  CXI. 

he  is  hereby  authorized  and  empowered  forthwith  to  issue  subpoe- 
nas, if  necessary,  to  compel  the  attendance  of  witnesses,  and  pro- 
ceed immediately  upon  the  trial  of  such  slave  in  a  summary  way, 
and  to  pass  sentence  and  award  execution  :   Provided,  the  punish- 
ment extends  no  further  than  by  ordering  the  offender  to  be  pub- 
licly whipped,  not  exceeding  forty  lashes  ;  and  where  the  offence, 
for  which  any  slave  shall  be  apprehended,  shall  appear  to  the  jus- 
tice or  justices  to  be  of  such  a  nature,  as  to  deserve  any  other  or 
greater  punishment,  such   offending   slave   shall  be  committed  to 
jail,  and  stand  his  or  her  trial  by  the  proper  court  having  jurisdic- 
tion of  such  offence  :   Provided,  that  upon  all  trials  of  slaves,  be- 
fore any  justice  of  the  peace,  for  any  misdemeanor  under  this  act, 
any  other  of  the  justices  of  the  county,  where  such  slave  may  be 
upon  trial,  may,  if  they  think  proper,   sit  upon  and  assist  in  the  ex- 
amination and  trial. 
What  jun'sdic-       42.   In  all   cases   of  offences  committed  by  slaves,  of  a  higher 
court  shall  have  ^^S'"^^  than  such  as  are  cognizable  by  a  justice  of  the  peace,  the 
over  offences      courts  of  pleas  and  quarter  sessions,  in  their  respective  counties, 
slav™"^'^  ^^    ^^^^^  have  original  exclusive  jurisdiction,  except  in  cases  in  which 
the  punishment  may  extend  to  life,   and   except  also  in  cases  of 
felonies  within  the   benefit  of  clergy  ;  and  trials  of  slaves,  in  the 
county  courts,  shall  be  conducted  under  the   same  rules,  regula- 
tions and  restrictions  as  the  trials  of  freemen. 
Jurisdiction  of       43.   In  all  cases,  unless  otherwise  expressly  provided,  in  which 
courlTver°of-    ^  slave  shall  be  charged   with  the  commission  of  an   offence,  the 
fences  commit- punishment  whereof  may  extend  to  life,  or  with  the  commission 
y  s  aves.    ^^  ^  felony  within  the  benefit  of  clergy,  the  superior  courts  of  law 
shall  have  exclusive  jurisdiction  within  their  respective  counties  ; 
and  the  trial  shall  be  conducted  under  the  same  rules,  regulations 
and  restrictions,  as  trials   of  freemen  for  a  like  offence  are  now 
conducted,  except  as  may  be  herein  otherwise  provided. 
Trials  of  slaves      44.   Such  cascs  may  be  removed  for  trial  to  an  adjoining  county, 
moved^a's^in     "P°"  affidavit  of  the  owner,  or  in  his  absence,  of  the   counsel   of 
cases  of  free     sucli  slave  or  slaves,  in  the  same  manner  as  causes  may  now  be 
persons.  removed  by  freemen  ;  and  if  it  shall  appear  to  the  presiding  judge, 

by  affidavit  of  the  master,  the  counsel  of  the  slave,  or  otherwise, 
that  such  slave  or  slaves  cannot  have  a  fair  trial  in  the  county 
wherein  the  offence  is  charged  to  have  been  committed,  it  shall 
and  may  be  lawful  for  such  judge  to  order  the  removal  of  such 
cause  to  an  adjacent  court  for  trial,  notwithstanding  the  master  or 
owner  of  such  slave  or  slaves  may  neglect  or  refuse  to  make  an  ap- 
plication to  the  court  for  that  purpose. 
Slaves  shall  be  45.  In  all  cases,  where  the  county  or  superior  courts  shall  have 
entitled  to  a      iurisdiction  of  offcnces  committed  by  slaves,  the  slave  charged  shall 

trial  by  jury       J  -ti  -ii  •  riii^i  r 

when  tried  in    be  entitled  to  a  trial  by  a  jury  of  good  and  lawful  men,  owners  of 

court.  slaves. 

karo^lences^'to'      46.  A  slave  shall  not  be  tried  for  a  capital  offence,  but  on  pre- 

42.  1793,  c.  381,  s.  1.— 1S16,  c.  912,  s.  1.— 1825,  c.  1291.— 1794,  c.  412. 

43.  181G,  c.  912,  s  I.— 1825,  c.  1291. 

44.  1816,  c.  912,  s.  2.— 1822,  c.  1130,  s.  2. 

45.  1793,  c.  381.  s.  1.— 1831,  c.  30,  s.  5. 

46.  1816,  c.  912,  s.  3.— 1818,  c.  972. 


CHA.P.  CXI.]  SLAVES,    ETC.  583 

sentment  or  indictment  of  the  grand  jury  ;  and  on  his  trial  for  such  be  tried  on  pre- 
capital  offence,  shall,  by  himself,  his  master  or  counsel,  have  the  ^^"^^g^^^  °[j^^'^' 
same  right  to  challenge  jurors,  that  a  freeman  is  now  entitled  to  by  be  allowed 

1  challenges  of 

*°-"^'         '  _  _  _  jurors. 

47.  A  slave,  convicted  of  a  clergiable  offence,  shall  be  entitled  slaves  allowed 
to  the  benefit  of  clergy,  in  like  manner  with  a  free  man,  and,  when  the  benefit  of 
he  shall  pray  for  the  same,  the   court  shall   have   power  to  direct 

and  adjudge  such  corporal  punishment,  short  of  death  or  dismem- 
berment, as  to  the  court  shall  seem  right  under  all  the  circum- 
stances of  the  case  ;  and  the  entry  of  such  judgment  shall  have  the 
same  legal  effects  and  consequences,  as  if  the  slave  or  slaves  were 
burned  in  the  hand,  as  in  the  case  of  a  freeman  convicted  of  a  sim- 
ilar offence. 

48.  When  a  slave   shall  be   apprehended  for   any  offence,  the  Owner  of  slaye 
punishment  whereof  may  affect  life,  member  or  limb,  it   shall  be  ^^  ^j^^^^ "j°j^^^ 
the  duty  of  the   sheriff,   and  he  is   hereby   required   to  serve  the  certain  cases. 
owner  of  such  slave,  if  known,  with  notice  of  trial    ten  days  pre- 
vious thereto,  (which  notice  shall  be  proved  to  the  court,)  in  order 

that  the  owner  may  have  an  opportunity  of  defending  the  said 
slave  ;  and  the  costs  of  said  notice,  and  all  other  costs  attending 
the  trial  of  any  slave,  so  apprehended,  where  the  owner  or  owners 
shall  be  known,  shall  be  paid  by  the  owner  or  owners  :  Provided^ 
the  said  slave,  if  a  freeman,  would  be  liable  to  the  payment  thereof. 
And  in  case  of  refusal  to  pay  the  same,  process  may  issue  from  the 
clerk  of  the  court  to  compel  payment  in  the  same  manner  as  for 
other  costs. 

49.  When  the  owner  of  any  slave,  to  be  tried  by  virtue  of  this  Where  the 
act,  shall  not  be  known,  or  cannot  be   discovered  or  ascertained,  be  found"the 
or  shall  reside  out  of  this  State,  it  shall  and  may  be  lawful  for  the  court  shall  ap- 
court,  and  they  are   hereby  authorized   and   required,    to  appoint  ^"^'"l^'^^g^^g"^*^ 
counsel  to  appear  for  and  in  behalf  of  the   prisoner,  who  shall  be 

allowed  the  same  fees  as  the  attorney  for  the  State  is  allowed  for 
criminal  prosecutions.  After  which,  they  may  proceed  to  trial  in 
the  same  manner  as  if  the  owner  had  been  notified  agreeable  to  the 
directions  of  this  act  ;  in  which  case  the  fees  for  the  counsel, 
clerk  and  sheriff  shall  be  paid  by  the  county,  in  which  the  court  is 
held,  in  the  same  manner  as  other  county  charges. 

50.  All  negroes,   Indians,    mulattoes,   and  all   persons  of  mix- Against  and  for 
ed   blood,  descended    from   negro  and   Indian  ancestors,  to    the  rndTt'her^tr- 
fourth  generation  inclusive,  (though  one  ancestor  of  each  genera-  sons  of  color 
tion  may  have  been  a  white  person)  whether  bond  or  free,  shall  be  ^^jj'^  ^^'" 
deemed  and  taken  to  be  incapable  in   law  to  be  witnesses  in  any 

case  whatsoever,  except  against  each  other.  In  all  pleas  of  the 
State,  where  the  defendant  may  be  a  negro,  Indian  or  mulatto,  or 
person  of  mixed  blood,  descended  from  negro  or  Indian  ancestors, 
to  the  fourth  generation  inclusive,  (though  one  ancestor  of  each 
generation  may  have  been  a  white  person,)  whether  such  defendant 
be  bond  or  free,  the  evidence  of  a  negro  or  negroes,  Indian  or  In- 

47.  1816,  c.  912,  s.  4.— 1825,  c.  1291. 

43.  1793,  c.  381,  s.  2. 

49.  1793,  c.  381,  s.  3. 

50.  1777,  c.  115,  s.  42.— 162),  c,  1123. 


584 


SLAVES,    ETC. 


[Chap.  CXI. 


negro,  &c.  ex- 
amined as  a 
witness. 

Negro,  &c. 
committing 
perjury,  to  be 
punished  as  a 
free  man. 


In  cases  of  in- 
surrection, &c. 
a  commission 
of  oyer  and 
terminer  may 
issue. 


dians,  mulatto  or  mulattoes,  and  of  all  persons  of  mixed  blood,  de- 
scended from  negro  or  Indian  ancestors  to  the  fourth  generation 
inclusive,  (though  one  ancestor  of  each  generation  may  have  been 
a  white  person,)  whether  the  persons  or  persons,  whose  evidence 
is  offered,  be  bond  or  free,  shall  be  admissible  and  the  witnesses 
competent,  subject  nevertheless  to  be  excluded  upon  any  other 
grounds  of  incompetency  which  may  exist. 
Court  to  give  a      ^j_   Q^^  ^^q  ^j.j^  q|-  gj^y  slave  charged  with  committing  capital 

charge  to  a  ,       •     i"'  •  .•  •  •    •       °        "^^     i 

or  other  oiiences,  the  judge  or  presidmg  magistrate  sittjng  on  such 
trial  shall,  before  the  examination  of  any  negro,  mulatto  or  Indian, 
charge  such  to  declare  the  truth. 

52.  If  any  negro,  mulatto  or  Indian,  bond  or  free,  shall,  upon 
any  trial  where  he  may  be  examined  as  a  witness,  commit  wilful 
and  corrupt  perjury,  he  or  she  shall,  upon  conviction  thereof,  be 
sentenced  to  receive  the  same  punishment,  as  is  imposed  upon  a 
free  man  for  the  commission  of  the  same  offence. 

53.  In  all  cases  of  insurrection  or  rebellion,  or  of  conspiracy  to 
make  insurrection,  or  to  murder  or  rebel,  or  any  such  contem- 
plated conspiracy,  insurrection  or  rebellion,  of  any  slave  or  slaves, 
upon  the  information  and  at  the  request  of  any  five  justices  of  the 
peace  of  the  county  in  which  such  conspiracy,  insurrection  or 
rebellion  shall  hap])en  or  may  be  contemplated,  the  governor  for 
the  time  being  shall  be  authorized  and  have  power  to  issue  a  com- 
mission of  oyer  and  terminer,  to  any  one  of  the  judges  of  the 
superior  courts  of  law  ;  and  in  case  the  said  judges  are  necessarily 
engaged  on  their  circuits,  the  governor  shall  be  authorized  and 
have  power  to  issue  a  commission  to  one  of  the  judges  of  the 
supreme  court,  whose  duty  it  shall  be  to  hold  said  court  forthwidi, 
and  who  shall  be  clothed  with  all  the  powers  necessary  for  the  trial 
of  all  such  slave  or  slaves,  as  may  be  charged  with  any  of  the 
before  mentioned  offences. 

54.  The  prosecuting  officer  in  behalf  of  the  State,  attending  the 
said  court,  shall  be  entitled  to  receive  the  same  compensation,  as 
may  be  allowed  by  law  generally  for  attending  a  term  of  a  superior 
court. 

55.  The  prisoner  or  prisoners,  who  shall  be  tried  before  any 
court  of  oyer  and  terminer,  shall  have  the  right  of  appeal  to  the 
supreme  court,  under  the  rules  and  regulations  now  prescribed  by 

t°^\^^«  ^"f""""^" law  for  appeals. 

Judge  may,  in  ^^-  When  the  person,  who  shall  be  indicted  before  a  court  of 
certain  cases,  oyer  and  terminer,  shall  upon  affidavit  of  himself  or  any  other  per- 
cause^tothe  ^on,  shew  such  circumstanccs  and  facts  to  the  court,  as  would 
regular  term  ofinducc  the  judge,  in  the  regular  courts  of  this  State,  to  remove  the 
trial  of  said  indictment  out  of  the  county,  the  judge  holding  such 
court  of  oyer  and  terminer  may,  in  his  discretion,  continue  the  said 
indictment,  and  commit  or  bind  over  the  prisoner,  as  the  case  may 


Compensation 
to  the  pros- 
ecuting officer 
in  such  case. 


Appeal  allow- 
ed from  such 
court  of  oyer 
and  terminer 


the  superior 
court 


51.  1741,  c.  35,  s.  42. 

52.  1741,  c.  35,  s.  41.— 1831,  c.  12. 

53.  1831,  C.  30,  s.  I. 

54.  1831,  c.  30,  s.  2. 

55.  1831,  c.  30,  s.  3. 

56.  1831,  c.  30,  s.  4. 


Chap.  CXL]  slaves,  etc.  585 

require,  for  trial  at  the  next  superior  court  for  said  county,  when 
the  same  shall  be  disposed  of,  according  to  the  rules  and  regula- 
tions in  force  for  the  trial  of  such  offences. 

57.  Any  inhabitant  of  this  State,  desirous   to  emancipate   any  Ho^  slaves 

,  /  1     11  /•!  .  .        /  ...  i'     I      maybeeman- 

slave  or  slaves,  shall  hie  a  petition  in  writing  in  some  one  ot  the  cipaied. 
superior  courts  of  this  State,  setting  forth,  as  near  as  may  be,  the 
name,  sex  and  age  of  such  slave  intended  to  be  emancipated,  and 
praying  permission  to  emancipate  the  same  ;  and  the  court,  before 
whom  such  petition  shall  be  filed,  shall  grant  the  prayer  thereof  on 
the  following  conditions  and  not  otherwise,  viz  :  That  the  peti- 
tioner shall  shew  that  he  has  given  public  notice  of  his  intention  to 
file  such  petition,  at  the  court  house  of  the  county,  and  in  the  State 
Gazette,  for  at  least  six  weeks  before  the  hearing  of  such  petition, 
and  that  the  petitioner  shall  enter  into  bond  with  two  securities, 
each  to  be  good  and  suflicient,  payable  to  the  State  of  North  Car- 
olina, in  the  sum  of  one  thousand  dollars  for  each  slave  named  in  Owner  to  give 
the  petition,  conditioned  that  the  said  slave  or  slaves  shall  honestly  ^°"/  condition- 

1  ■'  •'   gQ  for  slsv6S 

and  correctly  demean  him,  her  or  themselves,  while  he,  she  or  leaving  the 
they  shall  remain  within  the  State  of  North  Carolina,  and  that  he,  ^'^^*®'  ^^■ 
she  or  diey  will,  within  ninety  days  after  granting  the  prayer  of  the 
petitioner  to  emancipate  him,  her  or  them,  leave  the  State  of  North 
Carolina,  and  never  afterwards  come  within  the  same  :  Provided 
nevertheless^  that  no  such  emancipation  shall,  in  any  manner  what- 
ever, invalidate  or  affect  the  rights  or  claims  of  any  creditor  of  such 
petitioner.  ' 

58.  Any  emancipation  granted  to  any  slave  or  slaves,  as  herein  Emancipated 

^  .  .  sla.vGs  lo  IcELve 

directed,  shall  be  upon  the  express  condition,  that  he,  she  or  they  the  State  in 
will  leave  the  State,  within  ninety  days  from  the  granting  thereof,  '"lety  days. 
and  never  will  return  within  the  State  afterwards.  ^ 

59.  It  shall  be  lawful  for  any  person,  by  his  or  her  last  will  and  How  slaves 

, .  ,         .■'.'-..         ^ ,  •'  may  be  eman- 

testament,  to  direct  and  authorize  his  or  her  executor  or  executors,  cipated  when 
to  cause  to  be  emancipated  any  slave  or  slaves  pursuant  to  this  act  ;  directed  so  to 
and  such  bequest  or  authority  shall  be  good  and  available  in  law  will. 
and  equity,  and  shall  justify  said  executor  or  executors  in  emanci- 
pating such  slave  or  slaves  at  any  time  thereafter  :  Provided,  he, 
she  or  they  file  his,  her  or  their  petition,  and  pursue  the  directions 
of  this  act,  in  the  same  manner  as  if  he,  she  or  they  were  the  ab- 
solute owners  of  such  slave  or  slaves  :  Jind  provided  further,  that 
nothing  herein  contained  shall  be  taken  or  held  to  interfere  with 
the  claims  of  creditors,  or  exempt  any  slave,  directed  to  be  eman- 
cipated, from  liability  to  the  claims  of  creditors  :  Jlnd  provided 
further,  that  any  slave  emancipated  by  an  executor,  pursuant  to  the 
directions  of  the  testator,  shall  be  emancipated  on  the  same  con- 
ditions and  under  the  same  liabilities  as  herein  before  set  forth  : 
Provided  further,  that  no  permission  shall  be  granted  to  any  exe- 
cutor or  executors  to  emancipate  any  slave  or  slaves,  under  the 
directions  of  the  last  will  and  testament  of  his  or  their  testator, 
before  the  expiration  of  two  years   from  and  after    the  probate  of 

57.  1830,  c.  9,  s.  I. 
53.  1830,  c.  9,  s.  2. 
59.  1830,  c.  9,  s.  3. 

VOL.  I.  74 


586 


SLAVES,    ETC. 


[Chap.  CXI. 


Slaves  over 
fifty  years  of 
age  may  be 
emancipated 
for  meritorious 


Emancipated 
slaves  not 
leaving  the 
State,  or  return 
ing,  to  be  ar- 
rested and 
sold. 


Jn  such  case 
suit  may  also 
be  brought 
upon  the  bond 
given  by  the 
owner. 


said  last  will  and  testament,  unless  the  said  executor  or  executors 
shall  enter  into  bond,  with  appro v^ed  security,  to  the  State  of  North 
Carohna,  in  double  the  value  of  the  slave  or  slaves,  proposed  to 
be  emancipated,  conditioned  to  be  answerable  to  the  creditors  of 
his,  her  or  their  testator  for  the  value  of  the  said  slave  or  slaves. 

60.  It  may  be  lawful  to  emancipate,  upon  the  petition  filed  and 
under  the  order  of  any  superior  court  of  law  in  this  State,  any 
slave  over  the  age  of  fifty  years.  Provided,  his  or  her  owner  shall 
prove,  by  his  ov/n  oath  or  otherwise,  to  the  satisfaction  of  the  court 
and  jury,  that  said  slave  has  performed  meritorious  services  (which 
meritorious  services  must  consist  in  more  than  mere  general  per- 
formance of  duty  :)  Provided  nevertheless,  that  the  petitioner  shall 
swear  that  he  or  she  has  not  received,  in  money  or  otherwise,  the 
price  or  value,  or  any  part  thereof,  of  said  slave,  or  been  induced 
to  petition  for  his  or  her  emancipation  in  consideration  of  any  price 
paid  therefor  or  to  be  paid  :  Jind  provided  further,  that  before  such 
slave  shall  be  emancipated,  the  petitioner  shall  give  bond  and  good 
security,  in  the  sum  of  five  hundred  dollars,  payable  to  the  State 
of  North  Carolina,  that  said  slave  shall  honestly  and  correctly 
demean  him  or  herself,  so  long  as  he  or  she  shall  remain  in  the 
State,  and  shall  not  become  a  parish  charge  ;  which  bond  may  be 
sued  upon,  in  the  name  of  the  State,  to  the  use  of  the  poor,  or  of 
any  person  injured  by  the  malconduct  of  such  slave. 

61.  If  any  slave,  other  than  such  as  may  be  emancipated  under 
the  sixtieth  section  of  this  act,  shall    refuse    or  neglect  to  leave 

■the  State,  within  ninety  days  after  permission  to  emancipate  him 
or  her  has  been  granted,  as  aforesaid,  by  any  superior  court,  or 
shall  ever  come  within  the  State  after  having  left  it,  it  shall  be  the 
duty  of  any  justice  of  the  peace  of  any  county,  wherein  said  slave 
may  be  found,  to  issue  a  warrant  to  arrest  said  slave  ;  and  he  shall, 
upon  proper  proof  being  made  of  his  or  her  having  violated  the 
provisions  of  this  act,  commit  him  or  her  to  the  jail  of  the  county, 
there  to  remain  until  the  next  ensuing  term  of  the  court  of  pleas 
and  quarter  sessions,  where  an  issue  shall  be  made  up  and  immedi- 
ately tried,  whether  the  accused  has  violated  the  provisions  of  this 
act  ;  and  upon  the  finding  of  the  jury  that  the  accused  has  so  done, 
he,  she  or  they  shall,  by  the  said  court  of  pleas  and  quarter  ses- 
sions, be  ordered  to  be  sold,  which  sale  shall  vest  an  absolute 
right  of  property  in  the  purchaser  in  and  to  the  accused,  and  the 
proceeds  thereof  be  equally  divided  between  the  informer  and  the 
wardens  of  the  poor  of  the  county. 

62.  If  any  slave  shall  refuse  or  neglect  to  leave  the  State  as 
aforesaid,  or  shall  ever  come  within  the  same  after  having  left  it, 
it  shall  and  may  be  lawful  for  any  person  to  bring  suit,  in  the  name 
of  the  State,  for  the  joint  use  of  himself  and  the  wardens  of  the 
poor  of  the  county,  and  to  be  applied  by  them  to  the  support  of 
the  poor  of  the  county,  upon  the  bond  which  may  have  been  given, 
in  pursuance  of  the  provisions  of  this  act. 


60.  1830,  c.  9,  s.  4. 

61.  1830,  c.  9,  s.5. 

62.  1S30,  c.  9,  s.  6. 


Chap.  CXL]  slaves,  etc.  587 

63.  It  shall  be  the  duty  of  all    grand  juries  within  this  State  to  Grand  jury  to 
make  presentment  of  all  slaves,  who  may  hereafter  be  emancipated,  skves  violating 
who  may  violate  the  provisions  of  this  act  ;  and  upon  such  pre-  this  act. 
sentment,  it  shall  be   the  duty  of  the  prosecuting    officer  of  the 

county,  wherein  the  presentment  may  be  made,  to  prosecute  such 
slave  as  herein  before  provided. 

64.  No  slave  shall  be  set  free  but  according  to  the  provisions  of  No  slave  to  be 

,  .  "  -^  set  tree  but  ac- 

tillS  act.  -  cording  to  this 

65.  It  shall  not  be  lawful  for  any  free    negro,  or  mulatto  to  mi-^'^^- 

grate  into  this  State  :  and  if  he  or  she  shall  do  so,  contrary  to  the^^*^®j^°j^°^^_ 
provisions   of  this    act,    and,   being    thereof  informed,  shall  not,  grate  into  this 
within  twenty  days  thereafter,  remove  out  of  the  State,  he  or  she,  *^^^*^' 
being  thereof  convicted  in   manner  hereinafter  directed,  shall  be  „     ,     ^ 
liable  to  a  penalty  of  five   hundred  dollars  ;  and,  upon  failure  to  coming  into 
pay  the  same,  within  the  time  prescribed  in  the  judgment  awarded  ^^®  ?^^^? '^"'^ 

•*■    *'  ■*  *^      j^  not  lG3.vin2" 

against  such  person  or  persons,  he  or  she  shall  be  liable  to  be  held  after  20  days 
in  servitude  and  at  labor,  for  a  term  of  time  not  exceeding  ten  "notice, 
years,  in  such  manner  and  upon  such  terms  as  may  be  prescribed 
by  the  court  awarding  such  sentence,  and  the  proceeds  arising 
therefrom  shall  be  paid  over  to  the  county  trustee  for  county  pur- 
poses :  Provided,  that  in  case  any  free  negro  or  mulatto  shall  pay 
the  penalty  of  five  hundred  dollars,  according  to  the  provisions  of 
this  act,  it  shall  be  the  duty  of  such  free  negro  or  mulatto  to  re- 
move him  or  herself  out  of  this  State,  within  twenty  days  there- 
after, and,  for  every  such  failure,  he  or  she  shall  be  subject  to  the 
like  penalty,  as  is  prescribed  for  a  failure  to  remove  in  the  first 
instance. 

66.  If  any  free  negro  or  mulatto  shall  come  into  this  State  ifis  How  to  pro- 
aforesaid,  he  or  she  may  be  arrested  upon  a  warrant  from  any  jus-  'j.^^^  agamst 
tice  of  the  peace,  and  carried  before  any  justice  of  the  peace    of  &c.  cmfing^in- 
the  county,  in  which  he  or   she  may  be   arrested,  who   is   hereby  ^^  this  State. 
authorized  and   required  to  examine   into  the  case  ;   and   if,  upon 

such  examination,  it  shall  appear  to  him  that  the  said  free  negro  or 
mulatto  has  come  into  this  State,  contrary  to  the  provisions  of  this 
act,  he  shall  bind  hhn  or  her  over  to  the  next  county  court  of  said 
county,  which  shall  happen  thereafter,  taking  such  security  for  his 
or  her  appearance  as  may  be  reasonable  ;  and  upon  neglecting  or 
refusing  to  give  such  security,  the  said  justice  shall  commit  such 
free  negro  or  mulatto  to  the  jail  of  the  county,  there  to  be  con- 
fined until  the  next  county  court,  unless,  in  the  mean  time,  he- or 
she  shall  give  security  as  aforesaid  ;  and  at  the  said  court  it  shall 
be  the  duty  of  the  said  court,  to  inquire  into  the  case,  and  if  it 
shall  appear  to  them  that  the  said  free  negro  or  mulatto  has  migrated 
into  this  State,  contrary  to  the  provisions  of  this  act,  they  shall 
enter  judgment  against  him  or  her  for  the  aforesaid  penalty,  and  may 
award  execution  thereon  ;  and,  if  he  or  she  shall  have  no  property 
or  not  sufficient  to  satisfy  the  said  debt,  the  said  court  shall  adjudge 

63.  1830,  c.  9,  s.  7. 

64.  1830,  c.  9,  s.  8. 

65.  1S26,  c.  21,  s^  1. 

66.  1826,  c.  21,  s.  2. 


588  SLAVES,  ETC.  [Chap.  CXI. 

that  the  said  free  negro  or  mulatto  shall  be  hired  out  for  a  term  of 

time,  not  exceeding  that  prescribed  in  the  sixtyfifth  section  of  this 

act,  in  such  manner  and  upon  such  tejms  as  may  seem  expedient  to 

said  court. 

After  term  of        67.   If  after  the  expiration   of  the  term  of  service,   for   which 

move^under^'     such  free  negro  or  mulatto  shall  have  been  held  in  servitude,  he  or 

like  penalties,  she  shall  remain  in  this  State  for   thirty  days,  such   free  negro  or 

mulatto,  shall  be  liable  to  the  same   penalties  and  punishments,  as 

are  prescribed  in  the  sixtyfifth  and    sixtysixth  sections  of  this  act. 

Penalty  on  per-      68.   Any  person,  who  shall  bring  into  this    State,  by  water  or 

free\egroes,      land,  any  free  negro  or  mulatto,  shall  forfeit  and  pay  for  every  such 

&c.  into  this     person  so  brought  into  this  State,  the  sum  of  five  hundred  dollars, 

to  be  recovered  by  action  of  debt,  in  the  name  of  the  State,  for 

the  use  of  the  county,  where    the   offence  shall   be    committed  : 

Provided,  that  this  section  shall  not  extend  to  masters  of  vessels, 

bringing  into  this  State  any  free  negro  or  mulatto,   employed  on 

board  and  belonging  to  said  vessel,  and  who  shall  therewith  depart, 

nor  to  any  person,  travelling  in    or  through  this  State,   having  any 

free  negro  or  mulatto  as  a  servant,  and  who  shall  with  such  person 

depart  out  of  the  State. 

Vagabond  free       69.   If  any  free  negro  or  mulatto  in  any  county   of  this    State, 

how  to^be  dealt  "'lio  is  able  to  labor,  shall  be  found  spending   his  or  her  time  in 

■witii-  idleness  and  dissipation,  or  having  no  regular  or  honest  employment 

or  occupation,  which  he  or  she    is  accustomed  to    follow,  it   shall 

and  may  be  lawful  for  any  citizen  to  apply  to  a  justice  of  the  peace 

of  said  county,  and  upon   affidavit  to  obtain    a  warrant  to    arrest 

such  person  and  bring  him  or   her  before    some  justice  of  said 

county  ;  and  if,  upon  examination  of  the  cause,  it  shall  appear  to 

said  justice  that  the  said  free  negro  or  mulatto  comes  within    the 

provisions  of  this  section,  the  said  justice  shall  bind   him  or  her, 

with  reasonable  security,  to   appear  at  the  next  county  court  of 

said  county  ;  and  in  case  he  or  she  shall  fail  to  give  security,  such 

free  negro  or  mulatto  shall  be  committed  to  the  jail  of  the  county, 

until  the  next  county  court  thereafter,  and    it  shall   be  the  duty  of 

the  said   court,  if,  upon  examination   of  the  case,  he  or  she  shall 

come  within  the  meaning  of  this  section  to  require  such  free  negro 

or  mulatto  to  enter  into  bond,  with  sufficient  security  in    such  sum 

as  maybe  considered  by  the  court  reasonable,  payable  to  the  State 

of  North  Carolina,  conditioned  for  his  or  her  good  behavior   and 

industrious,  peaceable  deportment  for  one  year  ;  and  in  case  he  or 

she  shall  fail  to  give  such  security,  or   shall  not  pay  the  costs  and 

charges  of  the  prosecution,  it  shall  be  lawful  for  the  said  court  and 

they  are  hereby  required  to  hire  out  such  free  negro   or  mulatto, 

for  a  term  of  time,  to  service  and  and  labor,  which  to   them  may 

seem  reasonable  and  just  and  calculated  to  reform  him   or  her  to 

habits  of  industry  and  morality,  not  exceeding  three  years  for  any 

one  ofilence. 

Money  arising       70.   All  sums  of  money  which  may  arise  under  the   provisions 

from  the  hire  of 


free  negroes, 


67.  1826,  c.  21,  s.  3. 

68.  1S26,  c.  21,  s.  4. 

69.  1826,  c.  21,  s.  5. 

70.  1826,  C.  21,  s.  6. 


Chap.  CXI.]  slaves,  etc.  589 

of  the  last  section  from  the  hire  of  free  negroes  or  mulattoes,  shall  &c.  to  be  paid 
be  paid  to  the  county  trustee  for  county  uses.  trustee*^"™^^ 

71.  The  justices  of  the  courts  of  pleas  and   quarter    sessions,  County  court 
in  each  of  the   counties  of  this   State,  shall  have  power,  in  cases  ^^^^.|^J"^j.°^pj- 
where  it  may  appear  expedient,  to    bind   out   the  children  of  free  free  negroes, 
negroes  or  mulattoes,  where  the  parent,  with  whom  such  children  ^ggg"^ '^^'^^^^'^ 
may  live,  does  or   shall  not  habitually  employ  his   or  her  time  in 

some  honest,  industrious  occupation. 

72.  All  persons,  with  whom  any  free  negro  or  mulatto  may  be  Persons  to 
held  to  service  under  this  act,  shall,  and  they  are  hereby  required  j^egroes^  &c. 
to  provide  him  or  her  with  good  and  sufficient  clothing  and  food,  are  hired,  to 
treat  him  or  her  with  humanity,  and  teach  him   or  her  some  me-  and  not  to're-  ' 
chanical  trade,  or  some  useful  and  industrious  employment,  during  ^o^'*^  '^^^"^ 
the  term  for  which  such  free  negro  or  mulatto  may  be  compelled  county. 

to  serve  ;  he  or  she  shall  not  be  removed  from  the  county  by  such 
master  or  any  other  person,  and  shall  be  produced  to  the  county 
court  at  the  expiration  of  the  term  of  service  as  aforesaid,  or 
whenever  thereto  required  by  them  ;  and  if  any  such  master  or 
mistress  shall  violate  this  section,  he  or  she  may  be  indicted  for 
such  offence,  in  any  court  of  the  county,  where  such  offence  may 
be  committed,  and,  on  conviction  thereof,  may  be  fined  or  im- 
prisoned at  the  discretion  of  the  court  ;  and  in  case  such  free  negro 
or  mulatto  shall  run  away,  before  the  expiration  of  his  or  her  terra 
of  service,  he  or  she  shall  be  compelled  to  serve,  after  the  said 
expiration,  such  a  length  of  time  as  he  or  she  shall  have  absented 
him  or  herself. 

73.  In  all  cases,  arising  under  the  sixtyfifth,  sixtysixth,  sixty-  Free  negroes, 
seventh  and  sixtyninth  sections  of  this   act,  the  free  negro  or  mu-  wi'th'^nii^?atin<r 
latto,  who  is  charged  with  an  offence,  upon  application  to  the  court  into  this  State, 
for  that  purpose,  shall  have  a  right  to  have  the  facts  of  his  or  her  by  a  jury, 
case  tried  by  a  jury  upon  an  issue  or  issues,  made  up  under  the 
direction  of  the  court  for  that'j)urpose. 

74.  All  free  mulattoes,  descended  from  negro  ancestors  to  the  aleme^d  fl-ee^ 
fourth  generation  inclusive,  though  one  ancestor  of  each  generation  negroes. 
may  have   been  a  white  person,  shall  come  within  the  provisions 

of  this  act. 

75.  It  shall  be  the  duty  of  the  several  county  attorneys  in  this  ijg'^g^argeTand 
State,  to  give  in  charge  the  sixtyfifth,  sixtysixth,  sixtyseventh  and  to  make  pre- 

•    .      •    »u  *•  r  .u-  ^  ^    \\,  J    •  J  V  •     V,        u     sentment  of  the 

sixtyninth  sections  oi  this  act  to  the  grand  jurors,  and  it  is  nereby  og-g^ggs  of  free 
made  their  duty  to  present  all  cases  in  their  county,  arising  under  negroes,  &c. 
the  said  sections,  within  the  knowledge  of  either  of  them  ;  and  the  tj^ig  yfaJe_° 
said  attorneys  are  hereby  required,  in   all   cases  arising  under  the 
provisions  of  the  said  sections,  to  prosecute  for,  and  on  behalf  of 
the  State  ;  and  it  shall   be   the  duty  of  the  several  courts  of  this 
State,  before  whom  any  proceedings   may  be   had   under  the  said 
sections,  so  to  construe  the  same  as  to  prohibit  the  evils  intended 
to  be  remedied  ;  and  they  are  hereby  authorized  and  required  to 

71.  1826,  c.  21,  s.  7. 

72.  i626,  c.  21,  s.  S. 

73.  1826,  c  21,  s.  9. 

74.  1S26,  c.  21,  s.  10. 

75.  1826,  c.  21,  s.  11. 


590 


SLAVES,   ETC. 


[Chap.  CXI. 


Free  negroes, 
&c.  migrating 
from  this 
State  antd  being 
absent  ninety 
days,  not  to  be 
permitted  to  re- 
turn. 


Free  negroes 
not  to  inter- 
marry with 

slaves. 


Any  person  of 
color  attempt- 
ing to  commit  a 
rape  on  a  white 
woman,  to  suf- 
fer death. 

Free  negroes, 
&c.  not  to 
gamble  with 
slaves. 


Free  negroes, 
&c.  not  to  suf- 
fer slaves  to 
gamble  in  their 
houses. 


make  all  necessary  rules  and  regulations,  according  to  the  usual 
course  of  justice,  which  may  be  required  for  the  purposes  and  ob- 
jects of  the  said  sections  of  this  act. 

76.  If  any  free  negro  or  person  of  color,  who  may  be  a  resident 
of  this  State,  shall  migrate  from  this  State,  and  go  into  any  other 
state,  and  shall  be  absent  for  the  space  of  ninety  days  or  more,  it 
shall  not  be  lawful  for  such  free  negro  or  person  of  color  to  return 
to  this  State  ;  and  if  any  free  negro  or  person  of  color  shall  violate 
this  section,  he  shall  be  liable  to  the  same  penalties  as  are  pre- 
scribed for  the  punishment  of  free  negroes  and  persons  of  color, 
who  migrate  to  this  State  :  Provided,  that  no  persons  shall  incur 
the  penalties  or  disabilities  prescribed  in  this  section,  if  he  or  she 
shall  have  been  prevented  from  so  returning  to  this  State  by  sick- 
ness, or  other  unavoidable  occurrence. 

77.  It  shall  not  be  lawful  for  any  free  negro  or  free  person  of 
color  to  intermarry,  or  cohabit  and  live  together  as  man  and  wife, 
with  any  slave  ;  and  any  free  negro  or  person  of  color,  so  inter- 
marrying, or  cohabiting  and  living  as  man  and  wife  with  a  slave, 
shall  be  liable  to  indictment,  and,  upon  conviction,  shall  be  fined 
and  imprisoned,  or  whipped  at  the  discretion  of  the  court ;  the  whip- 
ping not  to  exceed  thirtynine  lashes  :  Provided,  that  this  section 
shall  not  extend  to  any  case,  where  an  intermarriage,  or  cohabiting, 
or  living  together  took  place,  before  the  first  day  of  March,  A.  D. 
one  thousand  eight  hundred  and  thirtyone. 

78.  Any  person  of  color,  convicted  by  due  course  of  law  of  an 
assault  with  intent  to  commit  a  rape  upon  the  body  of  a  white 
female,  shall  sufi'er  death  without  benefit  of  clergy. 

79.  It  shall  not  be  lawful  for  any  free  negro,  mulatto  or  person 
of  mixed  blood,  descended  from  negro  ancestors  to  the  fourth  gen- 
eration inclusive,  (though  one  ancestor  of  each  generation  may 
have  been  a  white  person,)  to  play  at  any  game  of  cards,  dice,  nine- 
pins, or  any  game  of  chance  or  hazard,  whether  for  money,  liquor 
or  any  kind  of  property,  or  not,  with  any  slave  or  slaves  ;  and  any 
free  negro,  mulatto  or  person  of  mixed  blood  as  aforesaid,  so 
offending,  shall,  upon  conviction  before  any  court  having  jurisdic- 
tion, receive  a  whipping,  not  exceeding  thirtynine  lashes,  on  his 
or  her  bare  back. 

80.  If  any  free  negro,  mulatto,  or  person  of  mixed  blood  as 
aforesaid,  shall  knowingly  suffer  any  slave  or  slaves  to  play  at  any 
game  of  cards,  dice,  nine-pins  or  any  game  of  chance  or  hazard, 
whether  for  money,  liquor  or  any  kiijd  of  property,  or  not,  in  his 
or  her  house,  or  in  the  yard,  field  or  garden  attached  or  belonging 
to  his  or  her  house,  he  or  she  shall  be  liable  to  indictment  in  any 
court  having  jurisdiction  ;  and,  upon  conviction,  the  free  negro, 
mulatto  or  person  of  mixed  blood  as  aforesaid,  shall  receive  a 
whipping  on  his  or  her  bare  back,  not  exceeding  thirtynine 
lashes. 


76. 

1830,  c. 

14. 

77. 

1830,  c. 

4,  s.  3. 

78. 

1823,  C. 

1229. 

79. 

1830,  c. 

10,  S.  2. 

80. 

1830,  C. 

10,  s.  -3 

Chap.  CXI.]  slaves,  etc.  591 

81.  If  any  free  negro  or  mulatto  shall  entertain  any  slave  in  his  Free  negroes, 
or  her  house,  during  the  sabbath,  or  in  the  night,  between  sunset  terta'in  slaves' 
and  sunrise,  he  or  she  shall,  for  entertaining  such  slave,  be  subject  in  their  houses 
to  a  fine  of  two  dollars  for   the   first  offence,  and   four  dollars  for  ^iuies.^'" 
every  subsequent   offence,  to  be   recovered  on  conviction   before 

any  one  justice  of  the  peace,  and  applied  to  the  use  of  the  poor  of 
the  county,  in  which  the  offence  shall  be  committed,  saving  to  the 
party  the  right  of  appealing. 

82.  If  any  slave  shall  buy  or  receive  from  any  slave  or  slaves.  Slaves  not  to 
or  shall  sell  or  deliver  to  any  slave  or   slaves,  any  of  the  property  Jj^g^  ^|.  ^^^^ 
prohibited  to  be  bought   by  or  received  from,  or  to   be   sold  or  tain  articles, 
delivered   to   any  slave  by  any  free   white    person,  by  the  laws  of 

this  State,  he  or  she,  on  conviction  thereof  before  any  justice  of 
the  peace,  shall  receive  on  his  or  her  back,  not  exceeding  thirty- 
nine  lashes,  well  laid  on  by  any  constable  of  said  county,  or  other  \ 
person  appointed  for  that  purpose. 

83.  If  anv  free   neero  or  mulatto  shall  trade  whh   any   slave,  Free  negroes 

.  1  1        1   '    •         /•  11-  1  •  1  -1         V.  &c.  not  to  trade 

either    by  buymg  n-om  or  selling   to   him  or  her,   any  article  ot  ^ith  slaves  for 
property,  prohibited   to  be   sold   or   bought   from  a  slave  by  any  certain  articles, 
white  free  person  by  the  laws  of  this   State,  he   or  she  may  be 
presented  by  indictment  in  the  county  or  superior  courts  ;  and, 
on  conviction,  shall  receive   not  less  than  thirtynine  lashes  on  his 
or  her  bare  back. 

84.  Either  of  the  parties  or  master  of  the    slave,  convicted  Appeals  al- 

,  -1  ^     ,  ^  ,.  .  1     n    1  -11  lowed  in  cases 

under  either  oi  the  two  preceding  sections,  shall   be  entitled  to  an  under  the  two 
appeal  from  the  judgment  of  the  justice  or  of  the  county  court  ;  pjecedmg  sec- 
and  no  indictment  shall  be  prosecuted  for  so  trading  with  a  slave, 
unless  the  indictment   be  commenced  witliin  twelve  months  from 
the  time  of  the  offence  committed. 

85.  It  shall  not  be  lawful  for  any  free  negro,  mulatto  or  free  ^''^•^  °^s™es, 
person  of  color,  to  hawk  .or  peddle,  within  the  limits  of  any  county  hawk  or  ped- 
in  this    State,  without   first  obtaining  a  license  from  the   court  of  ^.'^ '*^i''i°"' ^ 

O  llCGllSC 

pleas  and  quarter  sessions  of  the  county,  in  which  they  propose  to 
hawk  or  peddle,  which  license  shall  be  granted  for  one  year  only, 
and  only  when  seven  or  more  justices  are  present,  and  upon  satis- 
factory evidence  of  the  good  character  of  the  applicant,  to  be 
approved  by  said  court  ;  and  for  issuing  such  license,  the  clerk 
shall  be  entitled  to  demand  and  receive  from  such  applicant  the 
sum  of  eighty  cents  :  Provided  nevertheless,  that  nothing  in  this 
act  shall  be  construed,  so  as  to  allow  such  person,  coming  from 
another  state,  to  peddle  in  this  State  ;  and  if  any  free  negro,  or 
free  person  of  color,  shall  offend  against  this  section  of  this  act, 
he  or  she  shall  be  subject  to  indictment. 

86.  When  any  free  yjerson  of  color  shall  be  convicted  of  any  ^'""^^  °"  j!'"^^, 

.  .  DGrsoDS  01  color 

offence  against  the  criminal  laws  of  the  State,  and  sentenced  to  pay  how  to  be  en-  ' 
a  fine,  and  it  shall  appear  to  the  satisfaction  of  the  court,  that  the  f°^''^'^'^- 

81.  1787,  c.  267,  s.  2. 

82.  1326,  0.  13,  s.  4. 

83.  1826,  c.  13,  s.  5.— 1828,  c.  32,  s.  2. 

84.  1826,  c.  13,  s.  7.— 1828,  c.  32,  s.  3. 

85.  1831,  c.  28.— 1830, c.  7.  -*■ 

86.  1331,  c.  13,  s.  1. 


592  SLAVES,  ETC.  [Chap.  CXI. 

free   person    of  color,   so   convicted,    is   unable  to  pay  the    fine 
imposed,  the  court  shall  direct  the  sheriff  of  the   county,  where 
such  fine  is  imposed,  to  hire  out  the  free  person  of  color,  so  con- 
victed, to  any  person,  who  will  pay  the  fine  for  his  services  for 
the  shortest  space  of  time. 
How  such  free       §7.   It  shall  be  the  duty  of  the  sheriff,  during  the  week  of  court, 
coloTshaU  be    or  as  soon  thereafter  as  convenient,  publicly  at  the  door   of  the 
hired  out,         court  house,  to   hire  out  such  free  person  of  color  to  any  person, 
who  will  pay  the  fine,  so  imposed,  for  his  services  for  the  shortest 
space  of  time,  and  to  take   from  the  person   so  hiring,  bond  and 
security,  in  double   the  amount  of  the  fine  so  paid,  payable  in  the 
same  manner  and  with  the   same  conditions  for  the  proper  treat- 
ment of  the  free  person  of  color,  during  the  time  for  which  he  is 
so  hired,  as  are  now  contained  in  apprentice  bonds. 
Persons  hiring       88.   The  person,  to  whom  the  sheriff  shall  so  hire  any  free  per- 
the"same  au-^    son  of  color,  shall,  during  the  time  for  which  the  hiring  is  so  made, 
thorities.  and   have  the   same  authority  over,  and  the  same  right  to  control  and 
liaMitieVas      I'equire  the  services  of  such  free  person  of  color,  and  shall  be  liable 
masters  of  ap- in  all  respects   to  the  same  obligations  and  duties  as  masters  now 
prentices.         have,  and  are  liable  to  in  cases  of  apprentices. 
Further  pro-  gg_   jjf  j^q  person  can  be  found  who  will  pay  the  fine  so  imposed, 

visions  m  cases  ,  ^  r   j  r  -^ 

of  hiring  out     for  the  serviccs  of  the  free  person  of  color  so  fined,  for  a  space  of 
free  persons  of  ^jj^g   ^^^  exceeding  five   years,  then  it  shall  be  the  duty  of  the 

color  for  finesj      ,       .^,       ,  •         i       /■  "^         r       -,  i      -^    -n 

&,c.  sherm  to  hire  the  tree  person  ot  color  to  any  person,  who  will  pay 

the  highest  sum  for  his  services,  for  five  years,  which  sum  shall 
discharge  the  fine  ;  and  it  shall  be  the  duty  of  the  sheriff,  after 
deducting  five  per  cent,  commissions,  to  account  for  and  pay  over 
the  money  collected  by  virtue  of  this  act,  as  other  fines  :  Provided 
ahuays,  that  if  any  free  person  of  color,  hired  out  under  the  pro- 
visions of  this  act,  shall  abscond  or  leave  the  service  of  his  master 
before  the  expiration  of  his  or  her  time,  he  or  she  shall  be  hable 
and  bound  to  make  up  such  time,  so  elapsed,  by  serving  double 
the  time  thereof :  And  provided  further^  that  the  fine  imposed, 
shall  in  all  cases  be  at  least  equal  to  the  amount  of  the  costs  of  such 
prosecution. 

8?-.    1831,  c.  13,  s    2. 

88.  1831,  c.  13,  s.  3. 

89.  1831,  c.  13,  s.  4. 


Note. — Refeeences  to  Adjudged  Cases. 

Sect.  33.  State  vs.  Woodman,  3  Hawks,  334.     State  vs.  Clements,  3  Dev.  472. 

Sect.  37.  Stale  vs.  Tom,  2  Dev.  569. 

Sect.  45.  State  2js.  Allen,  3  Hawks,  614.     State  vs.  Daniel,  ib.  617. 

Sect.  46.  State  jjs.  Poll  and  Lavinia,  1  Hawks,  442. 

Sect.  50.  State  vs.  Isaac,  2  Dev.  47.     State  vs.  Jones,  ib.  43. 

Sect.  SO.  Slate  vs.  Jim,  1  Dev.  142.     State  vs.  Martin,  3  Dev.  329. 


Chap.  CXII.] 


STRAYS. 


593 


CHAPTER  112, 


STRAYS. 


AN    ACT    CONCERNIiVG    STRAYS. 


Section 

1.  County  courts  to  appoint  one  or  more 

rangers  for  each  county. 

2.  Information  of  strays  to  be  made  to 

rangers-Stray  to  be  valued- Rangers 
to  Iceep  a  book — To  advertise  strays. 

3.  Reward  to  the  taker  up. 

4.  Property  not  proved,  to  belong  to  the 

taker  up  after  twelve  months — May 
be  reclaimed — How  expense  of 
keeping  strays  shall  be  ascertained. 

5.  When  the  stray  is  not  claimed  within 

twelve  months,  two  thirds  of  the 
appraised  value  is  to  be  paid  to  the 
county  trustee — How  owner  may 
reclaim  the  two  thirds. 

6.  Taker   up  to  give   bond,  when   the 

value  of  the  stray  exceeds  four  dol- 
lars. 


Section 

7.  Taker  up   not   answerable  for  the 

death  of  the  stray. 

8.  None  but  freeholders  shall  take  up 

strays. 

9.  Rangers    authorized    to   administer 

oaths. 

10.  Rangers  to  make  returns  to  the  coun- 

ty court. 

1 1 .  Ranger's  books  to  be  open  for  public 

inspection. 

12.  County  trustee  to  collect  moneys  ac- 

cruing under  this  act. 

13.  Penalty  on  rangers   for  not  paying 

over  moneys. 

14.  Duty  of  the  taker  up,  when  the  stray 

dies  or  is  reclaimed. 

15.  How   the   penalties   under  tiiis   act 

shall  be  recovered. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  J^orth 
Carolina,  and  it    is  hereby   enacted   by  the    authority  of  the  same, 

That  the  respective  courts  of  pleas    and  quarter  sessions,  in  each  County  courts 
county  within  this  State,  shall  appoint  one  or  more  rangers  for  their  ^°^P.°^^^°"^g 
respective  counties,  who  shall  hold  their  offices   during  good  be- for  each  coun- 
havior  ;  and,  in  the  making  of  every  such  appointment,  there  shall '^^^ 
be  present  at  least  seven  justices   of  the   county,  and   no   person 
shall  be  deemed  duly  elected  without  receiving  a  majority  of  the 
votes  of  the  justices  present. 

2.  Every  freeholder,  who  shall  take  up  any  stray  horse,  mare,  Information  of 
gelding,  colt  or  mule,  neat   cattle,  hog  or   sheep,  shall,  under  the  made^to°the 
penalty  of  twenty  dollars  for  failing  so  to  do,  vvithin  ten  days  after  ranger. 

the  taking  up  of  such  stray,  (the  owner  of  such  stray  or  strays  being 
to  him  unknown,)  make  information  on  oath  before  the  ranger  of 
the  county,  wherein  such  stray  or  strays  shall  be  so  taken  up,  of 
the  marks,  brands  and  color  of  each  and  every  stray  or  strays, 
and  that  the  same  was  taken  up  at  his  or  her  plantation  or 
place  of  abode,  and  that  the  marks  or  brands  have  not  been 
altered  or  defaced  by  the  means  or  knowledge  of  such  taker 
up  ;  whereupon  such  ranger  is  hereby  required  to  issue  his  sum- 
mons to  any  two  freeholders  of  the  neighborhood,  who,  after  tak- 

1.  1777,  c.  119,  s.  2.— 1803,  c.  640.— 1816,  c.  901,  s.  2. 

2.  1777,  c.  119,  s.  2.— 1815,  c.  892.— 1319,  c.  1012,  s.  2. 

VOL.  I.  75 


594 


STRAYS. 


[Chap.  CXII. 


a  book. 


To  advertise 
strays. 


Stray  to  be  ing  the  oath  prescribed  for  the  faithful  and  impartial  discharge  of 
their  duty  before  the  ranger,  where  such  stray  or  strays  shall  be  so 
taken  up,  shall  view  and  appraise  such  stray  or  strays,  and  make 
return  thereof  to  the  said  ranger,  under  their  hands,  which  ap- 
praisement, with  a  particular  and  exact  description  of  the  marks, 
brands,  age  and  color,  as  near  as  can  be  ascertained,  of  each  and 
every  such  stray  or  strays,  together  with  the  time  of  taking  up,  and 
place  of  abode  of  the  person  taking  up  the   same,  shall  by  such 

Ranger  to  keep  ranger  be  entered  in  a  book,  to  be  by  him  kept  for  that  purpose, 
and  he  shall  immediately  thereafter,  and  also  during  the  sitting  of 
the  next  succeeding  court  of  the  county,  where  such  entry  shall 
be  made,  put  up  an  advertisement,  at  the  court  house,  in  the  most 
public  place,  describing  therein  the  kind,  marks,  brand  and  color, 
of  all  strays  entered  as  aforesaid,  and  in  case  the  stray  so  taken  up 
and  entered  shall  be  a  horse,  mare,  gelding,  colt  or  mule,  the 
ranger  shall  likewise,  without  delay,  under  a  penalty  of  four  dol- 
lars for  refusing  or  neglecting  so  to  do,  cause  an  advertisement  to 
be  published,  for  at  least  two  weeks,  in  the  paper  printed  by  the 
printer  for  the  State,  containing  an  accurate  description  of  the  stray 
as  entered  upon  his  book,  the  value  at  which  the  same,  shall  have 
been  appraised,  and  the  name  and  place  of  the  abode  of  the  taker 
up  ;  and  for  the  purpose  of  making  such  advertisement,  the  taker 
up  shall  pay  to  the  ranger  one  dollar,  which  sum  the  owner  shall 
pay  to  the  taker  up,  at  the  time  of  receiving  his  stray,  or  it  shall 
be  allowed  him  in  his  settlement  with  the  county  trustee,  as  herein- 
after directed. 

3.  The  person,  taking  any  stray  or  strays  aforesaid,  for  his 
trouble  and  expenses  in  taking  up  the  same  and  paying  to  the  ran- 
ger his  fees,  may  demand  and  receive  of  the  person,  claiming  the 
property  of  the  said  stray  or  strays,  the  sum  of  one  dollar  for  each 
horse,  mare,  gelding,  colt  or  mule,  fifty  cents  for  each  head  of 
cattle,  and  fifteen  cents  per  head  for  each  hog  and  sheep. 

4.  The  property  of  every  stray  horse,  mare,  gelding,  colt  or 
mule,  neat  cattle,  hog  or  sheep,  twelve  months  after  such  appraise- 
ment, and  property  not  proved  by  the  owner  thereof,  shall  be 
deemed  to  be  vested  in  the  person  taking  up  the  same  :  Provided 
nevertheless,  it  shall  and  may  be  lawful  for  the  former  owner  of  any 
such  stray  or  strays,  at  any  time  within  twelve  months  after  such 
appraisement,  as  aforesaid,  on  proving  his  properly  in  the  same 
before  the  ranger,  by  his  own  oath  or  otherwise,  to  demand  and 
recover  such  stray  or  strays,  or  the  valuation  thereof,  the  claimant 
first  paying  the  ranger's  fees,  and  the  reward  for  taking  up  the 
same  :    Provided  also,  that  where  the  taker  up  of  any  stray   shall 

strays  siiail  be  have  been  at  any  expense  for  keeping  and  maintaining  such  stray, 
ascertained.  j^  gj-,g]j  j^g  lawful  for  him  to  retain  the  same,  until  the  owner  or 
claimer  thereof  shall  pay  all  such  expense,  which  expense  shall  be 
ascertained  in  the  following  manner,  to  wit :  the  taker  up  shall  ob- 
tain from  the  ranger  or  some  justice  of  the  peace  a  warrant,  em- 
powering three  freeholders,  by  said  ranger  or  justice  to  be  named. 


Reward  to  the 
taker  up. 


Property  not 
proved,  to  be- 
long- to  the 
taker  up  after 
12  months. 

Maj'  be  re- 
claimed. 


How  expense 
of  keepin 


3.  1777,  c.  119,  s.  2. 

4.  1777,  c.  119,  s.  3,4  and  5. 


Chap.  CXIL]  strays.  595 

to  declare  on  oath  upon  view  of  said  stray,  and  examination  of  wit- 
nesses, if  necessary,  how  much  the  said  taker  up  ought  to  demand 
for  the  keeping  and  maintainance  of  the  stray,  and  such  sum,  as 
shall  by  the  said  freeholders,  or  any  two  of  them,  be  so  declared, 
shall  be  the  sum  which  the  taker  is  and  shall  be  entitled  to  demand 
and  receive,  before  the  owner  can  take  the  stray  out  of  his  pos- 
session. 

5.  After  the  expiration  of  twelve  months,  each  and  every  per- When  the 
son  so  taking  up  any  stray  or  strays,  and  no_  property  proved  by 'S^ Shin 
the  owner  thereof,  shall  account  for  and  pay  into  the  hands  of  the  12  months,  two 
county  trustee  two  thirds  of  the  appraised  value  of  all  such  stray  appraised  Value 
or  strays,  after  deducting  the  ranger's  fees,  the  costs  for  advertis-is  to  be  paid  to 
ing  and  the  reward  for  taking  up  the  same,  and  in  case  any  person,  Irustec!"^^ 

so  taking  up  any  stray  or  strays  according  to  the  intent  and  mean- 
ing of  this  act,  shall  neglect  or  refuse  to  account  with  the  said 
trustee,  as  herein  before  directed,  it  shall  be  the  duty  of  the  trus- 
tee to  commence  suit  for  the  same,  and  he  or  she  so  failing  shall 
also  forfeit  and  pay  double  the  appraised  value  of  all  such  stray  or 
strays  by  him  or  her  so  taken  up  :  Provided  nevertheless,  that  it  How  owner 
shall  and  may  be  lawful  for  the  former  owner  thereof,  at  any  time,  i^ay  reclaim 
on  proving  his  property  before  the  ranger  and  to  his  satisfaction, 
by  the  oath  of  one  or  more  indifferent  witnesses,  to  demand  and 
receive  from  the  county  trustee  two  thirds  of  the  appraised  value 
of  such  stray  or  strays,  so  accounted  for  as  aforesaid,  deducting 
therefrom  the  ranger's  fees,  the  cost  of  advertising,  the  reward  for 
taking  up,  and  the  trustee's  commission  of  six  p^r  cent,  for  receiv- 
ing and  accounting  for  the  same. 

6.  Any  person,  taking  up  a  stray  or   strays    as  aforesaid,  shall  Taker  up  to 
first  give  bond,  in  a  sum  of  at  least  double  the  sum,  which  may  be  f/^'^^^?"'^^'^"^ 
deemed  to  be  the  value    of  such  stray  or    strays,  with   approved  the  stray  ex- 
sureties,  to  some  one  of  the  rangers  of  the  county,  wherein  said  ^''^'^^  ^°"'' '^°^' 
stray  shall  be  taken  up,  for  his  or  her  faithful  compliance  with  the 

duties  enjoined  by  this  act,  by  delivering  up  the  stray  or  strays  to 
the  owner,  if  claimed  in  due  time,  or  otherwise  accounting  with  the 
county  trustee,  as  above  directed  :  Prowi(/e(/,  that  if  the  sum,  which 
may  be  deemed  to  be  the  value  of  such  stray  so  taken,  shall  not 
exceed  four  dollars,  then  no  bond  shall  be  required. 

7.  If  after  the  appraisement  of  any  stray   horse,  mare,  gelding.  Taker  up  not 
colt  or  mule,  and  entry  thereof  made  with  the    ranger,  such  stray  ^^e  death^oi^""^ 
should  happen  to  die,  within  the  space  of  twelve  months  after  such  the  stray. 
appraisement,  the  person  taking  up  such  stray   or  strays  shall    not 

be  answerable  for  the  same,  unless  such  death  appears  to  have 
been  occasioned  by  ill  usage  and  abuse. 

8.  If  any  person,  not  being  a  freeholder,  shall  presume  to  take  None  but  free- 
up  any  stray  horse,  mare,  gelding,  colt  or  mule,  neat  cattle,  ^^os['a°j|g"^  s^^a^s 
or  sheep,  or  if  any  freeholder  shall  take  up  any  such  stray  or  strays 

at  any  other  place  than  on  his  own  land,  or  shall  make  use  of  any 
such  stray  or  strays,  before  the  same  shall  be  appraised  as  aforesaid, 

5.  1777,  c.  119,  s.  6  and  7.— 1795.  c.  441. 

6.  1799,  c.  542,  s.  I  and  2. 

7.  1S17,  c.  9.51.— 1777,  C.  119,  S.  8. 

8.  1777,  C.  119.  S.  9. 


596  STRA.YS.  [Chap.  CXII. 

he  or  she  so  offending  shall,  for  every  such  offence,  forfeit  and 
pay  the  sum  of  ten  dollars,  and  be  further  liable  to  the  action  of 
the  party  grieved  :  Provided  nevertheless ^  that  nothing  herein  con- 
tained shall  extend  to  prevent  any  person  from  taking  up  any  stray 
or  strays  of  any  kind,  and  carrying  the  sanrie  immediately  to  the 
owner  thereof. 
Rangers  au-  Q.   Jt  shall  be  the  duty  of  the  rangers  in  the  several  counties  to 

minister  oaths,  administer  the  oath,  in  all  cases  where  it  is  required  to  be  taken 
before  them  according  to  the  provisions  of  this  act,  and  any  per- 
son swearing  falsely  and  corruptly  before  any  ranger,  in  any  case 
in  which  he  is  authorized  by  this  act  to  administer  oaths,  shall, 
upon  conviction,  suffer  the  penalties  prescribed  by  law  in  cases  of 
perjury. 
Rangers  to  10.   It  shall  be  the  duty  of  the  several  rangers  to  make  return  of 

to  the  county    the  Strays,  by  them    entered,  to  their    respective   county  courts, 
court.  which  shall  happen    after    the    first    day  of  February  in  each   and 

every  year,  under  the  penalty  of  twenty  dollars,  which  return  the 
clerk  of  the   court  shall  copy  and  deliver  to  the  county  trustee,  to 
the  end  that  he  may  proceed  to    the  collection  of  the  money  due. 
Ranger's  books      11.   For  the  more  speedy  recovery  of  strays,  it  shall  and    may 
publlcTnspec-    ^®  lawful  for  ^ny  person,  at  all    times  hereafter,  to   look  over  and 
tion.  search  the  entry  books,  by  this  act  directed  to  be  kept  by  the  ran- 

ger or  rangers  in  each  county,  for  any  information  he  may  want  as 
to  any  horse,  mare,  gelding,  colt  or  mule,  neat  cattle,  hog  or  sheep 
which  has  strayed  or  may  stray  away  from  the  owner  thereof,  the 
person  requesting  such  search  first  paying  the  prescribed  fee  there- 
for to  the  ranger  keeping  such  book. 
County  trustee       12.   It  shall  be  the  duty  of  the  trustees  in  each  county  and  they 
moneys  ac-       ^^e  hereby  required  to   collect  from  those,  who  have  entered    or 
cruing  under     may  enter  strays  in  their  counties  respectively,  all  sums  that  are  or 
may  be  due  for  any  stray   or  strays  entered,  under  the   same  rules 
as  they  are  to    collect  any  other  moneys  to  them  to  be    paid,  and 
on  all  such  collections   they  shall  be  entitled  to    receive   six  per 
centum.      And  if  any  person,  who  has  entered  or  may  enter  strays, 
shall  fail  to  account  for  the  moneys  aforesaid,  it  shall  be  the  duty 
of  the  county  trustee  to  commence  suit  for  the  same. 
Penalty  on  13.  Wherever  it  can  be   made  appear  that   any  ranger,  or  any 

payfng  over'^°    person  acting  as  deputy  ranger,  has   received,  or    shall    hereafter 
moneys.  receive  any  sums  of  money,  which    by  virtue  of  the    fifth  section 

of  this  act  ought  to  have  been  paid  by  the  taker  up  to  the  county 
trustee,  it  shall  be  the  duty  of  the  county  trustee  and  he  is  hereby 
authorized  to  call  on  such  ranger,  or  person  acting  as  deputy  ran- 
ger, for  the  payment  of  such  money  ;  and  on  failure  of  any  such 
person  to  settle  and  pay  as  herein  directed,  he  shall  forfeit  and  pay 
the  sum  of  two  hundred  dollars,  and  be  further  liable  to  the  suit  of 
the  county  trustee  for  such  sums,  as  can  be  proved  to  have  been 
paid  by  the  taker  up  of  strays,  over  and  above  the  ranger's  fee. 

9.  1819,  c.  1012,  s.  1. 

10.  1798,  c.  497,  s.  2. 

11.  1777,  c.  119,  s.  10. 

12.  1795,  c.  441. 

13.  1798,  c.  497,  S.  1. 


Chap.  CXIIL]     surety  and  principal. 


597 


14.  Each  and  every    person,  taking   up    a  stray  or  strays,  and  Duty  of  the 
such  stray  or  strays  being  reclaimed  by  the  owner  or  owners  there-  Ihe^stray  dies^ 
of,  or  dying  as  aforesaid,  shall  produce  to  the  ranger  of  the  county  or  is  reclaimed. 
a  certificate  of  such  stray  or  strays  being  reclaimed  or  dying,  from 

some  justice  of  the  peace  of  his  county,  within  twelve  months  after 
entering  such  stray  or  strays,  which  certificate  the  ranger  shall  note 
in  his  book  and  file  in  his  office,  and  shall  give  a  receipt  for  the 
same,  specifying  the  day  and  date  of  the  entry  of  such  stray  or 
strays.  And  in  case  any  taker  up  of  any  stray  or  strays  shall  fail 
or  neglect  to  produce  a  certificate,  when  demanded  by  the  county 
trustee,  he  or  she,  so  failing  or  neglecting,  shall  be  subject  to  the 
payment  of  all  costs,  which  may  accrue  in  consequence  of  any 
suit  or  suits,  which  shall  or  may  be  brought  against  him  or  her,  as 
fully  as  if  no  claim  of  such  stray  had  been  made  or  death  hap- 
pened. 

15.  Each  and  every  penalty,  that  may  be  incurred  by    the  vio-  How  the  pen- 

t    t  .  3.II16S  tiiiQGr 

lation  of  any  of  the  provisions  of  this  act,  shall  and  may  be  recov-  this  act  shall 
ered  by  the  county  trustee,  in  the  name   of  the  State,  for   the  use  ^^  recovered, 
of  the  court,  before  any  single  justice  or  court  or  county  having  ju- 
risdiction of  the  same. 

14.  1801,  c.  596. 

15.  Amendment.  . 

Stock  6#  gattie  ^  (^z,^;.  ^^^^ 

CHAPTER  113. 
SURETY    AND    PRINCIPAL.. 


an  act  concerning  surety  and  principal. 


Section 

1.  Summary  remedy  for  sureties  against 

their  principals. 

2.  One   surety  may   sue  his  co-surety 

for  a  rateable  proportion  of  the  debt 
paid  for  the  principal. 

3.  In  judgments  before   a  justice,  the 

surety  may  dissent  from  the  slay  of 


Section 

execution — and  then  shall  not  be 
liable  to  the  surety  for  the  stay — 
Ofhcer,  how  to  collect  in  such 
cases. 
4.  Surety  paying  a  debt,  shall  have  the 
same  priority  as  his  creditor  against 
executors  and  administrators. 


1.  Bk  it  enacted  by  the  General  Assemhhj  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  it  shall  and  may  be  lawful  for  any  person  or  persons  whatso-  Summary  rem- 

•'  -^    h  r  J  «•  edy  lor  sureties 

ever,  who  have  paid  any  sum  or  sums  ot  money  tor  and  on  account  against  their 
of  those  for  whom  they  became  security,  upon   producing  tp  the  principals, 
county  court  or  any  justice  of  the  peace,  who  may  have  jurisdiction 


1.   1797,  c.  437,  s.  1. 


i 


598 


SURETY    AND    PRINCIPAL.        [ChAP.  CXIII. 


One  surety 
may  sue  his 
co-surety  for  a 
rateable  pro- 
portion of  the 
debt  paid  for 
the  principal. 


In  judgments 
before  a  justice, 
the  surety  may 
dissent  from 
the  stay  of  ex- 
ecution —  and 
then  shall  not 
be  liable  to  the 
surety  for  the 
stay. 


Officer,  how  to 
collect  in  such 
cases. 


Surety  paying 
a  debt  shall 
have  the  same 
priority  as  his 
creditor 
against  exec- 
utors and  ad- 
ministrators. 


of  the  same,  a  receipt,  and  showing  that  an  execution  has  issued,  and 
that  he  has  satisfied  the  same,  and  making  it  satisfactorily  appear  by 
indifferent  testimony,  that  he  has  laid  out  and  expended  any  sum  or 
sums  of  money,  as  the  security  of  any  person,  to  move  such  court 
or  justice  of  the  peace,  as  the  case  may  be,  for  judgment  against 
"his  principal,  for  the  amount  of  the  sum,  which  he  has  actually  paid 
out  and  expended,  a  citation  previously  issuing  against  the  principal 
to  shew  cause  why  execution  should  not  be  awarded  ;  and  should 
not  the  principal  show  sufficient  cause  to  the  court  or  justice  of 
the  peace,  it  shall  be  lawful  for  such  court  or  justice  of  the  peace 
to  award  execution  thereon  against  the  goods  and  chattels,  lands 
and  tenements  of  the  principal. 

2.  Where  there  are  two  or  more  securities  for  the  performance 
of  any  contract  whatsoever,  and  it  shall  so  happen  that  one  or  more 
of  them  may  have  been  or  shall  be  compelled  to  perform  and  satisfy 
the  same  or  any  part  thereof,  and  the  principal  be  insolvent,  or  out 
of  the  State,  he,  she  or  they  may  have  and  mamtain  his,  her  or 
their  action  on  the  case  against  the  other  security  or  securities,  for 
a  just  and  rateable  proportion  of  the  sum,  which  he,  she  or  they 
may  be  compelled  to  pay  as  aforesaid,  whether  of  principal,  inter- 
est or  costs,  to  be  recovered  before  any  court  of  record  or  justice 
of  the  peace  having  jurisdiction  thereof. 

3.  Whenever  any  judgment  shall  be  obtained  before  a  justice  of 
the  peace,  upon  any  debt  contracted  by  bill,  bond,  note  or  cofitract, 
for  the  payment  of  which  any  person  shall  have  become  liable  as 
surety,  and  the  principal  debtor  shall  desire  to  obtain  a  stay  of  ex- 
ecution thereof,  but  the  surety  is  unwilling  that  such  stay  shall  be  had, 
it  shall  be  lawful  for  such  original  surety  to  cause  his  dissent  thereto 
to  be  entered  by  the  justice  granting  the  judgment,  which  shall  ab- 
solve him  from  all  liability  to  the  surety,  who  may  stay  the  same. 
And  it  shall  be  the  duty  of  the  constable  or  other  officer,  who  may 
have  the  collection  of  the  said  debt,  to  make  the  same  out  of  the 
property  of  the  principal  debtor,  and  that  of  the  surety  for  the  stay 
of  execution,  before  he  resorts  to  the  property  of  the  said  original 
surety. 

4.  When  a  surety,  or  the  representatives  of  a  surety,  shall 
discharge  in  whole  or  in  part  the  debt  of  his  principat,  the  claim 
of  surety  or  the  representatives  of  such  surety,  against  the  execu- 
tor or  administrator  of  his  principal,  shall  have  the  same  priority 
against  the  assets,  as  belonged  to  the  demand  of  the  creditor  thus 
in  whole  or  part  discharged. 


2.  1807,  c.  722. 

3.  1829,  c.  6,  s.  1  and  2. 

4.  1829,  c.  23. 


Note. — References   to  Adjudged  Cases. 
Sect.  4.  Chaffin  vs.  Haines,  4  Dev.  103. 


^ti2r.t.,   nu;-  ^^^ 


s 


Chap.  CXIV.] 


TOWNS. 


m9 


CHAPTER    114. 


TOWNS. 


AN  ACT  CONCERNING  INCORPORATED  TOWNS. 


Section 

1 .  Owners  of  lots  to  have  further  time  to 

complete  buildings. 

2.  Commissioners  of  towns  may  lay  a 

tax  on  doffs. 


Section 
3.  Penalty  for  failing  to  give  them  in. 
4-  Commissioners  of  towns  to  publish  a 
list  of  taxes — Penalty  for  failure. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted   by  the  authority  of  the  same, 

That  all  persons,  who  hold  lots  in  any  of  the  towns  of  this  State,  Owners  of  lots 
shall  have  until  the  year  eighteen  hundred  and  eightyfive,  to  com- ^"^^'^[^^^"j^',^^' 
plete  their  buildings,  agreeably  to  the  respective  acts  of  assembly  piete  buildings, 
in  those  cases  made  and  provided. 

2.  The  commissioners  of  every  incorporated  town  in  this  State  Commissioners 
shall  have  power  to  impose   such  annual  tax  on   dogs,  kept  within  J'^^^^^^^^'^^^ 
said  town,  as  they  shall  think  proper  ;  and  to  require  the  persons,  dogs, 
owning  or  possessing  said  dogs,  to  return   the  same  in  their  list  of 

taxable  property,  in  the  same  manner  as  other  taxable  property  is 
by  law  required  to  be  given  in  for  taxation. 

3.  If  any  person,  residing  in  either  of  said  towns,  shall  have  in  Penalty  for 
his  possession,  within  the  same,  any  dog,  and  shall  not  return  the  failing  to  give 
same   for   taxation,  and  shall  fail   to  pay  the  tax  after  thirty  days 

public  notice  of  the  imposition  thereof,  and  of  the  notice  to  return 
the  same  for  taxation,  the  commissioners  of  such  town  may,  and 
are  hereby  authorized,  at  their  option,  to  sue  for  and  recover  the 
tax  from  the  person  so  failing,  before  any  jurisdiction  having  cog- 
nizance thereof,  or  may  treat  said  dogs,  not  returned  for  taxation, 
and  not  paid  for,  as  nuisances,  and  may  order  their  destruction  as 
they  may  think  fit. 

4.  Said  commissioners  shall  annually  publish  an  accurate  list  of  Commissioners 
the  taxes,  levied  and  collected  in  their  respective  towns,  together  °|jy°gJJ'^j°gj^|. 
with  a  list  of  each  sum  expended  by  them,  and  to  whom  paid,  and  taxes. 

for  what  purpose  ;  and  any  board  of  commissioners,  failing  to  com-  Penalty  for 
ply  with  the  directions  and  intentions  of  this  section,  shall  forfeit 
and  pay  the  sum  of  one  hundred  dollars,  to  be  recovered  by  any 
person,  who  shall  sue  for  the  same,  which  sum  shall  be  levied  of 
the  goods  and  chattels,  lands  and  tenements  of  said  commissioners 
or  either  of  them. 


1.  1785,  c.  244. 

2.  1817,  c.  957,  s.  1. 

3.  1817,  c.  957,  s  2. 

4.  1786,  c.  255,  s.  S. 


600 


TREASURER. 


[Chap.  CXV. 


CHAPTER  115. 


TREASURER. 


AN  ACT  CONCERNING  THE  TREASURER  OF  THE  STATE. 


Section 

1.  Treasurer  to  be  biennially  elected — 

Oaths  to  be  taken  and  bond 
given. 

2.  On  failure  to  give  bond,  another  to 

be  elected. 

3.  If  the  failure  occur   during  the  re- 

cess, governor  and  council  to  ap- 
point. 

4.  How  judgment  may  be   entered  on 

the  bond. 

5.  Treasurer  to  keep  an   account  of  re- 

ceipts and  expenditures. 

6.  To  report  to  the  General  Assembly 

at  e  ch  session. 

7.  Committee  of  finance,  at  each  ses- 

sion, to  examine  into  a.ad  report  the 
state  of  the  treasury. 

8.  No  grant  or  warrant  to  be  paid,  un- 

less it  express  the  cause  for  which 
it  issued 

9.  Names  of  defaulting  revenue  officers 

to  be  published. 

10.  Monthly  settlements  to  be  made  by  the 

treasurer  and  comptroller  — Balance 
in  the  treasury  to  be  deposited  iir 
the  banks. 

1 1 .  Duplicate  certificates  of  deposits  to 

be  taken. 
12-  Treasurer  may  check  for  the  money 

deposited. 
13.  Duty  of  the  treasurer  and  governor, 


1/ 


13. 


Section 

when  a  bank  is  suspected  of  insol- 
vency. 

14.  Treasurer,  in  all  cases,  to  give  a  du- 

plicate receipt  —  No  receipt  good 
without  the  comptroller's  endorse- 
ment. 

15.  Accounts  of  the  literary  and  internal  - 

improvement  funds  to  pass  through 
comptroller's  office. 

16.  Certificates  of  stock  belonging  to  the 

Stale,  to  be  registered  and  endorsed 
by  the  secretary  of  state. 
Comptroller  to  endorse  them,  when 
allowed  as  a  credit  to  the  treasurer. 
Copy  of  certificate  from  the  secre- 
tary's office  to  be  good,  when  the 
original  is  lost. 

19.  Treasurer,  in  certain  cases,  may  ap- 
point agents. 

20  Treasurer  may  move  for  judgment 
against  such  agents,  as  against 
sheriffs. 

21.  Treasurer  may  employ  a  clerk. 

22.  Office  hours. 

23.  Penalty  for  failing  to  proceed  against 

delinquents. 

24.  Proceedings  against  the  treasurer  for 

defalcation. 

25.  Priority  of  the  State  in  case  of  the 

death  or  insolvency  of  the  treasurer. 

26.  Fraud  in  the  treasurer,  how  punished. 


1.   Be  it  enacted  by  the  General  Assembly  of  the  State  of  Js'orth 

Carolina^  and  it   is   hereby  enacted  by  the  authority  of  the  same^ 

That  the  treasurer  of  the  State   shall  be   elected,  as  early  in  each 

Treasurer  to  be  j^ J gj^j^-jjg^   session  as  Can   be   conveniently  done.      Before   enterine; 

uienniaiiy  rv  i         •  i  •  r  •  •  it? 

elected  into  office  and   within   twentyone  days  after  his  election,  he  shall 

uken  and^bond  t^^^  and  Subscribe  the  oaths  prescribed  by  law,  before  some  justice 
given.  of  the  peace  ;  he   shall  give  bond  to  the  governor,  with  securities 

to  be  approved  by  the  governor  and  the  speakers  of  the  two  houses 
of  the  General  Assembly,  in  the  penalty  of  two  hundred  and  fifty 
thousand  dollars,  payable  to  the  State  of  North  Carolina,  con- 
ditioned that  he  will  faithfully  account  for   all  moneys   and  other 


I.  1S27,  c.  1,  s.  1. 


Chap.  CXV.]  treasurer.  601 

things,  which  shall  come  to  his  hands  in  virtue  of  his  office,  and 
perform  all  other  duties  required  by  law,  or  which  may  hereafter 
be  required  by  law,  of  the  treasurer  of  this  State  ;  and  the  said  treas- 
urer shall  execute  duplicates  of  the  said  bond,  which  shall  be 
endorsed  "  approved,"  and  signed  by  the  governor  and  speakers 
of  the  two  houses,  and  one  duplicate  shall  be  delivered  by  the 
governor  to  the  comptroller,  and  the  other  to  the  secretary  of  state, 
for  safe  keeping,  and  the  certifi(;ate  of  the  treasurer's  qualification 
shall  be  delivered  to  the  comptroller  and  filed  with  the  bonds  : 
Provided^  that  the  election  of  treasurer  shall  not  take  place,  until 
after  the  committee  of  finance  shall  have  made  their  report  on  the 
state  of  the  treasury. 

2.  If  the   person  elected  treasurer   shall  fail  to   give  bond  and  On  failure  to 
security,  within  the  time  mentioned  by  this  act,  it  shall  be  the  duty  f^o^theTio  be 
of  the  governor  to  communicate  the  same  to  the  General  Assembly,  elected, 
who  shall  proceed  to  elect  some  other  person. 

3.  If  at  any  time  there  should  not  be  twentyone  days,  between  If  the  failure 
the  election  of  treasurer  and  the  rise  of  the  General  Assembly,  the^reces"'^^ 
then  the  bonds  required  by  this  act  shall  be  given  to  the  governor,  governor  and 
within  twentyone   days   after  such  election,  and  by  him   endorsed  po"n" 

"  approved,"  and  if  any  person  elected  treasurer  shall  fail  to  give 
such  bonds,  within  the  time  prescribed,  and  the  legislature 
should  not  then  be  in  session,  it  shall  then  be  the  duty  of  the 
governor  to  call  the  council  of  state  and  proceed  to  appoint 
some  other  person  treasurer,  and  the  person  so  appointed  shall 
give  bonds  and  security,  within  twentyone  days,  to  be  approved 
by  the  governor  :  Provided,  that  in  no  case  shall  any  person  ap- 
pointed treasurer,  either  by  the  General  Assembly  or  the  governor 
and  council,  enter  into  office,  before  giving  bonds  and  taking  and 
subscribing  the  oath  of  office  as  above  required. 

4.  Suit   may  be  brought  on   either  of  the   bonds   given  by  the  How  judgment 
treasurer,  and  judgment  may  be  entered,  in  the  same  manner  and  ^^[he^'bond'^'^'^*^ 
under  the  same  rules  and  regulations,  as  have  been  or  shall  be  pre- 
scribed for  entering  judgments  against  the  several  sherifis  of  this 

State. 

5.  It   shall  be  the  duty  of  the  treasurer,  in  books  provided  for  Treasurer  to 
that  purpose  at  the  public   expense,  to  state  and   keep  an  account  ^7*^'' ^'■^'^^°™j 

r     .y      "  .     " .  .      t'  '      .  ,   .      "^      .  of  rerejpts  and 

01  all  money,  received  by  hmi  for  public  taxes  and  impositions  and  expenditures, 
otherwise,  and  all  moneys  paid  by  him  for  public  dues  and  in  pur- 
suance of  acts  and  votes  of  the  General  Assembly,  in  such  a  man- 
ner that  the  net  produce  of  the  whole  revenue,  as  well  as  of  every 
branch  thereof,  and  the  amount  of  disbursements  in  discharge  of 
the  several  demands,  may  distinctly  appear,  which  accounts  shall 
at  all  times  be  liable  to  the  inspection  and  examination  of  the  Gen- 
eral Assembly. 

6.  The    treasurer    shall    form    an    accurate    statement    of    the  To  report  to  the 
treasury,  which   shall  be   laid   before   the    General   Assembly  and  ^e^"|^,iy  af^Jach 


session. 


2.  1827,  c.  1,  s.  4. 

3.  1827,  c.  1,  s.  5. 

4.  1327,  C.  1,  s.  2. 

5.  1827,  C.  1,  s.  3. 

6.  1327,  C.  1,  S.  11. 

VOL.  I.  76 


602 


TREASURER. 


[Chap.  CXV. 


Committee  of 
finance  at  each 
session  to  ex- 
amine into  and 
report  the 
state  of  the 
treasury. 


No  grant  or 
warrant  to  be 
paid  unless  it 
express  the 
cause  for  which 
it  issued. 

Names  of  de- 
faulting rev- 
enue officers  to 
be  published. 


Monthly  set- 
tlements to  be 
made  by  the 
treasurer  and 
comptroller. 

Balance  in  the 
treasury  to  be 
deposited  in 
the  banks. 

Duplicate  cer- 
tificates of  de- 
posits to  be 
taken. 


Treasurer  may 
check  for  the 
money  depos- 
ited. 


which  shall  be  pubhshed  and  bound  up  with  the  laws  of  each  ses- 
sion thereof  ;  in  which  statement  shall  be  specified  the  net  produce 
of  the  several  branches  of  revenue,  the  several  allowances  for 
insolvencies,  and  the  arrears  of  any  sheriff,  or  any  other  person 
bound  to  account  with  the  public  treasurer  ;  all  allowances  and 
drafts  made  by  the  General  Assembly,  and  warrants  issued  by  the 
governor,  shall  be  severally  enumerated,  briefly  setting  forth  in 
whose  favor  they  were  made  or  drawn  and  on  what  account. 

7.  The  books  and  accounts  of  the  treasurer  and  comptroller 
shall  be  subject  to  the  inspection  and  examination  of  the  committee 
of  finance  of  the  legislature,  during  each  session  of  the  legislature, 
and  it  shall  be  the  duty  of  the  said  committee  carefully  to  examine 
the  exact  condition  and  statement  of  the  deposits,  made  in  the 
banks  by  the  treasurer,  and  ascertain  the  amount  of  funds  of  the 
State,  at  the  time  of  the  report  of  the  treasurer  to  the  legislature, 
and  also  ascertain  the  full  amount  of  money  in  the  treasury,  by 
counting  the  same  ;  and  they  shall  report  thereon  at  each  session. 

8.  The  public  treasurer  shall  not  discharge  any  grant  by  the 
assembly,  or  warrant  of  the  governor,  unless  the  said  grant  or  war- 
rant shall  particularly  express  the  cause  and  service  for  which  the 
same  was  issued. 

9.  On  the  first  day  of  November,  in  each  and  every  year,  it 
shall  be  the  duty  of  the  public  treasurer  and  comptroller  for  the 
time  being,  to  certify  and  deliver  to  the  public  printer,  to  be  by 
him  published  for  one  month,  a  hst  containing  the  names  of  all  the 
revenue  officers  of  the  State,  who  shall  on  that  day  have  failed  to 
account  for  the  public  taxes  and  other  moneys,  due  by  them  for 
the  last  year,  and  which  by  law  are  made  payable  into  the  treasury 
on  the  first  of  October  preceding,  stating  in  such  list  the  sum  due 
from  each  officer  respectively  for  that  year. 

10.  It  shall  be  the  duty  of  the  treasurer  and  comptroller  of  this 
State,  at  all  times,  except  during  the  sitting  of  the  legislature,  to 
have  monthly  settlements  of  all  accounts  of  public  moneys,  which 
by  law  they  are  required  to  keep,  and  once  in  each  month  to  bal- 
ance said  accounts,  and  ascertain  the  amount  of  public  money  in 
the  possession  of  the  treasurer,  which  said  amount  shall,  immedi- 
ately thereafter,  be  deposited  by  the  treasurer  in  the  banks  of  this 
State. 

11.  For  all  deposits  of  public  money,  made  by  the  treasurer  in 
the  banks  of  this  State,  the  cashier  thereof  shall  give  duplicate  cer- 
tificates of  deposit,  one  to  the  comptroller,  which  he  shall  file  and 
safely  keep  in  his  office,  and  the  other  to  the  treasurer,  which  cer- 
tificates shall  be  given  by  the  cashier  at  the  time  the  deposit  shall 
be  made  by  the  treasurer. 

12.  The  treasurer  shall  from  time  to  time,  as  the  public  interest 
may  require  it,  check  for  the  pubHc  moneys  deposited  in  the  banks  as 

7.  1827,  c.  l,s  16. 

8.  1827,  c.  I,  s.  9. 

9.  1827,  c.  1,  s.  23. 

10.  1S27,  c.  1,  s.  12. 

11.  1827,  c.  I,  s.  13. 

12.  1827,  c.  1,  s.  14. 


Chap.  CXV.]  treasurer.  603 

aforesaid,  and  for  the  amounts  for  which  he  shall  so  draw,  he  shall 
account  to  the  comptroller  in  their  monthly  settlements,  but  the 
treasurer  may  check  for  and  keep  in  his  office,  during  the  session 
of  the  legislature,  an  amount  of  money  sufficient  to  pay  the  officers 
and  members  of  the  two  houses. 

13.  If  at  any  time  the  treasurer  shall  suspect  the  solvency  of  any  Duty  of  the 
of  the  banks,  in  which  public  moneys  are  deposited,  it  shall  be  his  ^'^v^eraor  when 
duty  to  communicate  the  same  to  the  governor,  and  if,  upon  an  ex- a  bank  is  sus- 
amination  of  the  subject,  the  governor  shall  consider  that  the  public  sohency.  ^^' 
interest  requires  the  public  money  to  be  withdrawn  from  the  bank, 

it  shall  be  the  duty  of  the  treasurer  to  remove,  or  cause  to  be  re- 
moved, the  deposit  in  the  said  bank. 

14.  The  treasurer  shall,  in  all  payments  made  to  him,  grant  two ''.'{'^^s"'"^'' iii 

•  .  till  CS-SG^  to 

receipts  of  the  same  tenor  and  date,  one  of  which    receipts    shall  give  duplicate 
be  filed  in  the  comptroller's  office,  and  the  other  shall  be  endorsed  ^^^'^^ip^°: 
by  the  comptroller  and  continued  with  the  person,  who   has  made  irood  without 
the  payment,  without  which   endorsement  of  the  comptroller  no  J'^^  comptrol- 

1    •/  ■'  1^  Icr  s  Gnclor^G" 

receipt,  said  to  be  given  by  the  treasurer,  shall  be  operative.  ment.' 

15.  The  receipts  and  expenditures  of  the  literary    fund  and  the  Accounts  of  the 
fund  for  internal  improvements  shall  be  in  all  cases  passed  through  i,\'iernZl  tm- 
the  comptroller's  office,  be  examined   by  him  and  entered  on  his  provement 
books,  in  like  manner  as  all  other  receipts  and  expenditures.  through  comp- 

16.  It  shall  be  the  duty  of  the  treasurer  of  this  State  and  he  is  trollef's  office, 
hereby  directed  to  deliver  to  the  secretary  of  state  all  the    certifi-  Certificates  of 
cates  or  other  evidences  of  shares  or    stock    in  any  of  the    incor-  IJ'i]^^  state^to^ 
poi'ated  companies,  in  which  the  State  is   interested,  and   it  shall  t^e  registered 
be  the  duty  of  the  secretary  of  state  to  register  the  same  in  a  well  by  th" secieta- 
bound  book,  to  be  kept  for  that  purpose,  and  to  endorse   such  reg-  it  of  state. 
istration  on  the  back  of  each  certificate    or  other  evidence  of  the 

claim  of  the  State,  which  shall  be  returned  to  the  treasurer. 

17.  It  shall  be  the   duty  of  the    comptroller  and  he   is    hereby  Comptroller  to 
directed,  as  soon  as  his  accounts  shall  be  passed  on  by  the  General  ^bg°j[®^j]p^^'^ 
Assembly,  to  endorse  upon   each   certificate  or    other  evidence  of  as  a  credit  to 
public  stock,  that  the  same  has    been  allowed  by    the  General  As-  *®  treasurer, 
sembly,  as  a  credit  to  the  public  treasurer,  and  the    date  of  such 
ahowance  ;  and  to  return  such  certificate  or  other  evidence  to  the 
treasurer  for  safe  keeping. 

18.  Whenever  any  certificate,  or  other    evidence   of  the  claim  copy  of  cer- 
of  the  State  to  shares  or  stock  in  any   of  the  incorporated  compa- tj'^'^ate  from  ^ 
nies,  shall  be  lost  or  destroyed,  a  certified  copy  thereof  from  theoffice'trbe'^^ 
secretary's  office  shall  be  as  good  and  valid  to  all  intents    and  pur- ?oo4  when  the 

•  r   .1  •    •      1  11  oriemal  is  lost. 

poses,  as  it  the  origmal  were  produced. 

19.  Whenever  it  shall  be  necessary  to  collect  any  moneys,  or  to  Treasurer  in 
enforce  any   demands  of  the  State,  in    any  other  state  or  country,  "^ertam  cases 

1  -11  1       •  r      1  111  •       rnay  appoint 

tlie  treasurer,  witli  the  approbation  oi    the   governor,  shall  appoint  agents. 
an  agent  or  agents  for    that  purpose,  and  execute    to  him  or  them 

13.  1S27,  c.  1,  s.  15. 

14.  1827,  c.  1,  s.  20. 

15.  1327,  C.  1,  s.  21. 

16.  1826,  c.  27,  s.  1. 

17.  1820,  c.  27,  S.  2. 

18.  1S26,  c.  27,  s.  3, 

19.  1803,  C.  750. 


604 


TREASURER, 


[Chap.  CXV. 


Office  hours. 


letters  of  attorney,  specifying  the  powers  conferred  ;  and  said 
agent  or  agents  shall  receive  such  compensation  from  the  public 
treasurer,  as  the  governor  and  treasurer  may  allow,  or  as  the  Gen- 
eral Assembly  may  direct. 
Treasurer  may  20.  The  public  treasurer  of  this  State  shall  have  full  power  and 
move  for  judg-  auij-jority  to  move  for  iudement  against  any  person  or  persons  act- 

ment  agamst       .  J'  ^       cT       °       ,        °    •     i    i        i  i       o  '       i 

such  agents  as  mg  as  agents  tor  the  otate,  who  are  indebted  to  the  btate  by  or  on 
ffs^^"^*^^ *^^''     ^ct^ount  of  such    agency,  in  any  court  of   record  of  this  State,  in 
the  same  manner  and  under  the  same    rules  and  regulations,  which 
«»  are  prescribed  in  cases  of  delinquent  sheriffs,  and  the  said   courts 

shall  respectively  render  judgment  and  award  execution,  though  the 
amount  thereof  may  be  within  the  jurisdiction  of  a  justice  of  the 
peace. 
Treasurer  may  21.  The  treasurer  shall  be  allowed  the  sum  of  five  hundred  dol- 
empoy  acer-.  ig^.g^  as  a  salary  to  such  clerk  or  clerks,  as  he  may  think  proper  to 
employ  in  the  office,  to  be  paid  out  of  the  public  treasury,  in  quar- 
terly payments,  to  wit  :  on  the  first  day  of  April,  July,  October 
and  January  in  each  and  every  year,  on  warrants  to  be  drawn  by 
the  governor. 

22.  For  the  convenience  of  tlie  treasurer  and  persons  having 
business  with  him,  he  shall  be  required  to  attend  to  every  applica- 
tion made  by  them  for  official  duties  at  his  office,  which  shall  be 
in  the  city  of  Raleigh,  between  the  hours  of  nine  and  twelve  and 
between  two  and  five  o'clock  on  every  day  in  the  year,  (Sundays 
and  the  fourth  of  July  only  excepted,)  and  said  officer  shall  not  be 
required  to  attend  to  any  call  made  at  any  other  time  of  the  day. 

23.  If,  at  any  time,  it  shall  appear  that  the  public  treasurer  hath 
neglected,  in  any  instance,  to  call  to  account,  as  directed  by  law, 
any  delinquents  herein  before  described,  by  which  the  public  rev- 
enue of  the  State  may  suffer  loss,  then  and  in  such  case  the  said 
treasurer  shall  be  held  and  deemed  accountable  for  sums,  due  by 
such  delinquents,  to  all  intents  and  purposes,  as  if  the  same  had 
actually  been  paid  into  his  office. 

24.  If,  at  any  time,  it  shall  appear  from  the  accounts  kept 
between  the  comptroller  and  treasurer,  or  it  shall  appear  in  any 
other  way,  that  the  treasurer  has  not  accounted  for  and  paid  over 
the  public  moneys  of  this  State,  as  directed  by  law,  it  shall  and 
may  be  lawful  for  the  State  to  move  for  and  obtain  judgment 
against  the  said  treasurer  and  his  securities  or  any  of  them,  in  any 
court  of  record  in  this  State,  first  giving  to  the  persons,  against 
whom  such  motion  shall  be  made,  at  least  five  days  notice  of  the 
time  and  place,  when  and  where  such  motion  will  be  made,  and 
upon  such  judgment  execution  shall  issue  as  in  other  cases. 

Priority  of  the  25.  If  any  person  appointed  treasurer  shall  die  indebted  to  the 
tli'cTdeath  or^ °  Sf^te,  or  being  so  indebted,  shall  become  insolvent,  any  debt, 
insolvency  of    which  he  may  owe  to  the  State,  shall  be   first   satisfied  ;  and  the 

the  treasurer. 

20.  1827,  c.  1,  s.  25. 

21.  1827,  c  1,  s.  19. 

22.  1824.  c.  123S,  s.  6. 
33.  1784,  c.  219,  s.  12. 

24.  1827,  c.  1,  S.  17. 

25.  1827,  C.  1,  8.  18. 


Penalty  for 
failing  to  pro 
ceed  against 
delinquents. 


Proceedings 
against  the 
treasurer  for 
defalcation. 


Chap.  CXVI.] 


UNIVERSITY. 


605 


priority  hereby  established,  shall  be  deemed  to  extend  to  cases, 
in  which  such  debtor,  not  having  sufficient  property  to  pay  his 
debts,  shall  make  a  voluntary  assignment  thereof,  or  in  which  his 
estate  or  effects  shall  be  attached,  as  of  absconding,  concealed  or 
absent  debtors. 

26.   If  any  person   appointed  treasurer,  of  his  own  head    and^'"^""^ '"*J^^ 

.^     r  rr  .  r         1       •  I  1  1     11       -1    treasurer,  how 

imaguiation.  or  by  lalse  conspiracy  or  traud  with  others,  shall  wi I- punished. 
lingly  or  falsely  make,  or  cause  to  be  made,  any  false  entry  or 
charge  in  any  book  or  books,  which  he  is  required  by  law  to  keep, 
or  shall  wittingly  and  falsely  form,  or  procure  to  be  formed,  any 
statement  of  the  treasury,  to  be  by  him  laid  before  the  governor, 
the  General  Assembly  or  any  committee  thereof,  or  to  be  by  him 
used  in  any  settlement,  which  he  is  required  to  make  with  the 
comptroller,  with  intent  iu  either  or  any  of  said  instances  to  de- 
fraud the  State  or  any  person  or  persons,  such  treasurer  shall  be 
deemed  and  held  guilty  of  a  misdemeanor,  and,  upon  due  convic- 
tion thereof  in  any  of  the  superior  courts  of  this  State,  shall  be 
fined  at  the  discretion  of  the  court,  not  exceeding  one  thousand 
dollars,  and  imprisoned,  not  exceeding  three  years. 

26.  Amendment. 


CHAPTER  116. 


UNIVERSITY. 


AN  ACT  CONCERNING  THE  UNIVERSITY  OF  NORTH  CAROLINA. 


Section 

1.  Merchants,  &c.  not  to  sell  goods,  &c. 

to  students  of  the  university,  with- 
out consent  of  the  faculty. 

2.  No  license  to  retail  spirituous  liquors 

at  Chapel  Hill  shall  be  granted — 
Electioneering  treats,  also  prohibit- 
ed. 


Section 

3.  Theatrical     performances,     &c.     at 

Chapel  Hill,  or  within  five  miles 
thereof,  prohibited. 

4.  Billiard  tables,  i:c.  also  prohibited. 

5.  Persons  offending  against  these  pro- 


visions, to  be  indicted. 


/  r4-^.5 


oXy.Gf- 


1.   'Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina^  and  it  is  hereby   enacted  by  the  authority  of  the  same, 
That  it  shall  be  unlawful  for  any  merchant,  shop   keeper   or  other  Merchants,  &c. 
person  at  Chapel  Hill,  or   within  two  miles  thereof,  to  sell  to  any  goods,  &c.  to 
student  of  the   university,  goods,  wares,    merchandise,   spirituous  st"Hents  of  the 
liquors  or  wine,  without  the  consent  of  the   faculty,  or  some  one  ^thom  con- 
of  the  professors  thereof,  given  in  writing  ;  and  if  any  contract  for  sent  of  the  fac- 


1.    1327,  c.  4,  s.  1. 


606 


USURY. 


[Chap.  CXVII. 


No  license  to 
retail  spirituous 
liquors  at 
Chapel  Hill 
shall  be  grant- 
ed. 

Electioneering 
treats  also  pro- 
hibited. 

Theatrical  per- 
formances, &c. 
at  Chapel  Hill 
or  within  five 
miles  thereof 
prohibited. 
Billiard  tables, 
&c.,  also  pro- 
hibited. 

Persons  offend- 
ing against 
these  pro- 
visions, to  be 
indicted. 


the  sale  of  such  articles  shall  be  made,  it  is  hereby  declared  to  be 
null  and  void,  and  no  recovery  shall  be  had  thereon. 

2.  No  license  shall  be  granted  to  retail  spirituous  liquors  at 
Chapel  Hill,  or  within  two  miles  thereof:  any  license  obtained  for 
that  purpose  shall  be  null  and  void,  nor  shall  it  be  lawful  for  any 
person  to  give  an  electioneering  treat  or  entertainment,  within  two 
miles  of  the  university  of  the  State. 

3.  It  shall  not  be  lawful  for  any  person  or  persons  to  exhibit 
any  theatrical,  sleight  of  hand,  or  equestrian  performances,  dra- 
matic recitations,  rope  or  wire  dancing,  or  natural  or  artificial 
curiosities,  at  Chapel  Hill,  or  within  five  miles  thereof,  without 
the  special  permission  in  writing  of  the  faculty. 

4.  No  person  shall  set  up  or  keep  up  any  billiard  table  or  other 
public  table,  constructed  or  erected  for  playing  games  of  chance, 
by  whatever  name  called. 

5.  If  any  person  or  persons  shall  offend  against  the  provisions 
of  this  act,  or  any  of  them,  he,  she  or  they,  thus  offending,  shall 
be  liable  to  be  indicted  under  this  act,  and  fined  or  imprisoned  at 
the  discretion  of  the  court,  or  under  any  general  act  or  acts  of  the 
General  Assembly,  prohibiting  said  offences. 

2.  Amendment. 

3.  1824,  c.  1252. 

4.  1794,  c.  429,  amended. 

5.  1827,  c.  4,  s.  2,  amended. 


CHAPTER  117. 


usfjMY.  /r<^^^'  ^y^ 


terest. 


AN  ACT  FOR  RESTRAINING  THE  TAKING  OF  EXCESSIVE  USURY. 

Be  it  enacted  by  the  General  Assembly  of  the  State  of  JS'orth 
Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
Not  more  than  That  no  person  or  persons  whatsoever,  upon  any  contract,  shall, 
beVakerfor  in- fi'i"ectly  or  indirectly,  take  for  loan  of  any  moneys,  wares,  mer- 
chandises or  commodities  whatsoever,  above  the  value  of  six  dol- 
lars, by  way  of  discount  or  interest  for  the  forbearance  of  one 
hundred  dollars  for  one  year,  and  so  after  that  rate  for  a  greater  or 
lesser  sum,  or  for  a  longer  or  shorter  time  ;  and  that  all  bonds, 
contracts  and  assurances  whatsoever,  for  the  payment  of  any  prin- 
cipal or  money  to  be  lent,  or  covenanted  to  be  performed, 
upon  or  for  any  usury,  whereupon  or  whereby  there  shall  be  re- 
served or  taken  above  the  rate  of  six  dollars  in  the  hundred,  as 
aforesaid,  shall  be  utterly  void  ;  and  that  all  and  every  person  or 


1741,  e.  23. 


Chap.  CXVIIL]  vice  and  immorality. 


607 


persons  whatsoever,  which,  upon  any  contract,  shall  take,  accept  Persons  taking 

d*  1  r*  .1*1  inorG  to  loriGit 

receive,   by  way  or   means  ot  any  corrupt    bargain,  loan,  ex-  double  the 

change,  shift  or  interest  of  any  moneys,  wares,  merchandises  or^^lue. 
other  thing  or  things  whatsoever,  or  by  any  deceitful  ways  or 
means,  or  by  any  discount,  covin,  device  or  deceitful  conveyance, 
for  the  forbearing  or  giving  day  of  payment,  for  one  whole  year, 
of  or  for  their  money  or  other  thing,  above  the  sum  of  six  dollars 
for  the  forbearing  of  one  hundred  dollars  for  a  year,  and  so  after 
that  rate  for  a  greater  or  lesser  sum,  or  for  a  longer  or  shorter  time, 
shall  forfeit  and  lose,  for  every  such  offence,  the  double  value 
of  moneys,  wares,  merchandises  and  other  things,  so  lent,  bar- 
gained, exchanged  or  shifted  ;  the  one  moiety  of  all  which  for- 
feitures to  be  to  the  State,  and  the  other  moiety  to  him  or  them, 
that  will  sue  for  the  same  by  action  of  debt  in  any  court  of  record 
within  this  State. 


Note. — References  to  Adjudged  Cases. 

Glisson  2)s.  IVewton,  I  Hay.  336.  Carter  rs.  Brand,  Conf.  2S.  ^'eawell  z-s  Shomberg- 
er,  2  Murph,  200.  Graham  vs.  Lowrie,  N.  C.  Term  Rep.  189.  McQueeu  i^s.  Burns, 
1  Hawks,  476.  Ruffin  vs.  Armstrong,  2  Hawks,  411.  Wilkes  vs.  Coffield,  3  Hawks, 
28.  State  Bank  vs.  Hunter,  1  Dev.  100.  Collier  j7s.  Neville,  3  Dev.  30.  Dowell  rs. 
Vannov,  ibid.  43.  McBrayer  vs.  Roberts,  2  Dev.  Eq.  75.  Jones  vs.  Cannady,  4  Dev. 
86. 


CHAPTER  118. 


VICE   AND   IMMORALITY, 


an  act  for  the  more  effectual  suppression  of  vice  and 

immorality. 


Section 
L.  No  person  to  do  any  work  on  the  Sab- 
bath, under  penalty  of  one  dollar. 

2.  Penalty   on    persons     for    profanely 

swearing  in  the  hearing  of  a  justice 
— A  public  ofBcer  to  pay  double. 

3.  Penalty   for  profanely  swearing  in  a 

court  of  record. 


Section 

4.  Penalty  for  getting  drunk. 

5.  Power  of  justices  as  to  o3ences  under 

this  act — Proviso,  as  to  time  within 
which  offences  must  be  prosecuted. 

6.  Fines,  how  appropriated. 

7.  Penalty  for  committing  fornication. 


1.   Be  it  enacted  by  the  General  Assembly  of  the  State  of  JVorth 
Carolina.,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  all  and  every  person   and   persons   whatsoever  shall,  on  the  ^°  Person  to 
Lord's  day,  commonly  called   Sunday,  carefully  apply  themselves  on  Thls^bbath, 
to  the  duties  of  religion  and  piety  :  and  that  no  tradesman,  artificer,  "'^der  penalty 

^  -^       •'  '  '  01  one  dollar. 


1.  1741,  c.  30,  s. 


608  VICE   AND    IMMORALITY.    [ChAP.  CXVIIl. 

planter,  laborer,  or   other  person  whatsoever,  shall,  upon  the  land 
or   water,  do  or  exercise   any  labor,   business,  or   work,  of  their 
ordinary  callings,  (works  of  necessity  and  charity  only  excepted,) 
nor   employ  themselves   either  in   hunting,  fishing,  or  fowling,  nor 
use  any  game,  sport,  or  play,  on  the  Lord's   day  aforesaid,  or  any 
part  thereof,  upon  pain   that  every  person,  so  offending,  being  of 
the  age  of  fourteen  years  and  upwards,  shall  forfeit  and  pay  the  sum 
of  one  dollar. 
Penalty  on  per-      2.   If  any  person  or  persons   shall  profanely  swear  or  curse,  in 
fanelv  swear-    ^^^  hearing  of  any  justice  of  the   peace,  or   shall  be  convicted  of 
ing  in  the         profanely  swearing  and  cursing,  by  the  oath  of  one  or  more  witness 
iust'ice^  ^^  witnesses,  or  confession  of  the  party  before  any  justice  or  jus- 

tices of  the  peacB,  every  such  offender  shall  forfeit  and  pay  the 
sum  of  twentyfive  cents,  for  every  oath  or  curse  ;  and  if  any  per- 
son  executing  any  public   office,  shall  profanely  swear   or  curse, 

.     ,  T     fc     being  first  convicted,  as  aforesaid,  such  person  shall  forfeit  and  pay 
A  public  officer  o  '  'r  r  j 

to  pay  double,  the  sum  01  fatty  cents,  lor  each  and  every  oath  or  curse. 
Penalty  for  3.   If  any  person  or  persons   shall   profanely  swear  and  curse, 

profanely  Jn  t^g   presence  of  any  court  of  record  in   this   State,    such  of- 

court  of  record,  fender  Or  offenders  shall  immediately  pay  the  sum  of  one  dollar, 
for  each  and  every  oath  or  curse  ;  to  be  deposited  in  the  hands  of 
the  chairman  of  the  said  court,  and  by  him  accounted  for  and  paid, 
as  hereinafter  directed  :  or  to  sit  in  the  stocks,  not  exceeding  three 
hours,  by  order  of  such  court. 
Penalty  for  4.   Every  person,    convicted   of  drunkenness,  by  view  of  any 

getting  drunk,  justice   of  the  peace,  confession   of  the  party,  or  oath  of  one  or 
more  witness  or  witnesses,  such  person  so  convicted  shall,  if  such 
offence  was  committed  on  the  Lord's  day,  forfeit  and  pay  the  sum 
of  fifty  cents  ;  but  if  on   any   other  day,  the   sum   of  twentyfive 
cents,  for  each  and  every  offence. 
Power  of  jus-        5.    All  and   every  justice  and  justices  of  the  peace,  within   his 
fence^unde^'    °^  their  respective  county,  shall  have  full  power  and  authority  to 
this  act.  convene  before   him   or  them   any  person  or  persons,   who  shall 

offend  in  any  of  the  particulars   before  mentioned,  in  his  or  their 
hearing,  or  on  other  legal  conviction  of  any  such  offence,  and  to 
impose  the  said  fine  or  penalty  for  the  sasne,  and  to  restrain  or  com- 
mit the  offender   until  it  be  satisfied,  or  to  cause  the  same  to  be 
levied  by  distress  and  sale  of  the  offender's  goods,  returning  the 
overplus,  if  any,  to  the  owner ;  and  in  case  any  such  offender  be 
unable  to  satisfy  such  fine,  to  cause  him   to  be  put  in  the  stocks, 
Proviso  as  to    ^^^^  exceeding  three  hours  :   Provided  always^  that  all  informations 
time  within      against  the  aforesaid  offenders,  shall  be  made  wnthin  ten  days  after 
must  be  proT-^  ^"ch  offence  or  offences  committed,  and  not  after, 
ecuted.  g.    All  fines,  accruing  and  becoming  due   by  virtue  of  this  act, 

^"^^^.' J*°y  ^P- shall  be  levied  as  soon  as  may  be  after  conviction,  one  half  to  the 
informer,  the  other  half  to  the  use  of  the  county,  where  such 
offence  shall  be  committed  ;  and  the  chairman  and  justices  of  the 

2.  1741,  c.  30,  s.  3. 

3.  i74i,  c.  30,  s.  4. 

4.  1741,  c.  30,  s.  5. 

5.  1741,  c.  30,  s.  6  and  7. 

6.  1741,  c.  30,  s.  8. 


Chap.  CXIX.]  waste.  609 

several  courts  of  the  several  counties  of  this  State  are  hereby- 
directed  to  account  for,  upon  oath,  and  pay  such  fine  or  fines,  as 
shall  or  may  by  them  or  any  of  them  be  received  by  virtue  of  this 
act,  to  the  wardens  of  the  poor  of  the  respective  counties,  at  least 
once  a  year,  and  when  demanded  by  the  said  wardens,  under  the 
penalty  of  paying  the  sum  of  forty  dollars  for  every  refusal,  to  be 
levied  and  apphed  as  aforesaid. 

7.   If  any   persons  commit  fornication,    upon  due   conviction,  P^^^l'iyf"!^ 
each  of  them  shall  forfeit  and  pay  two  dollars  and  fifty  cents,  for  fomication^ 
each  and  every  such   offence,  to  be  recovered  and  applied  to  the 
same  use  as  the  other  fines  in  this  act. 

7.  1741,  c.  30,  s.  9. 


CHAPTER  119. 

AN    ACT    CONCERNING    WASTE. 


Section 

1.  Who  entitled  to  the  action  for  waste, 

and  against  whom. 

2.  If  tenant  for  life  aliens,  he  is  still  liable. 

3.  Plaintiff  shall  recover    treble    dama- 

ges, and  the  place  wasted. 


Section 

4.  Action  will  lie  by  one  joint  tenant, 

&c.  against  his  co-tenant. 

5.  Heirs  shall  have  the  action. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted  by  the   authority  of  the  same, 

That  in  all  cases  of  waste,  an  action  shall  lie  at  the  instance  of  him  who  entitled 
in  whom  the  right  is,  against  all  persons   committing  the  same,  as  to  the  action 
well  tenant  for  term  of  life,  as  tenant  for  term  of  years  and  guar- agabst  whom. 
dians. 

2.  Where  tenant  for  life  or  years  granteth  his  estate  to  another,  If  tenant  for 
and  still  continues  in  the  possession  of  the  lands,  tenements  or  j^  ^^^^  j^^y^ 
hereditaments,  an  action  shall  He  against  the  said  tenant  for  life  or 

years. 

3.  In  all  such  cases  of  waste,   when  judgment  shall  be  against  Plaintiff  shall 
the  defendant,  the  court,  before   whom  the   cause  is    tried  or  the  ^aml^erand 
writ  of  inquiry  executed,  shall  give  judgment  against  the  defendant  the  place 
for  thrice  the  amount  of  the  damages  assessed  by  the  jury,  and  also  ^^®^'^'^' 
that  the  plaintiff  recover  of  the  defendant  the  place  wasted. 

1.  52  Hen.  3  c.  23.-6  Edw.  1,  c.  5. 

2.  11  Hen.  6,  c.  5. 

3.  6  Edw.  1,  c.  5.— 20  Edw.  1,  stat.  2. 

VOL.    I.  77 


610  WEIGHTS    AND    MEASURES.       [ChAP.  CXX, 

Action  will  lie  4.  Where  a  joint  tenant  or  a  tenant  in  common  committeth  waste, 
t'eUnf  ^&c^^  3"  action  shall  lie  against  him  at  the  instance  of  his  co-tenant  or 
against  his  co-  joint  tenant. 

Heir's  shall  ^-  Every  heir   shall  have  his  action   for  waste  committed  on 

have  the  action,  lands,  tenements  or  hereditaments  of  his  own  inheritance,  as  well 
in  the  time  of  his  ancestor  as  in  his  own, 

4.  13  Edw.  1,  c.  22. 

5.  20  Edw.  I,  Stat.  2. 


CHAPTER  120. 


WEIGHTS    AND    MEASURES. 


AN  ACT  CONCERNING  WEIGHTS  AND  BIEASURES. 

Section  /^^l^^  ■   ^  •  JT/" 

to  be  tried — Standard  keeper  to 
give  certificates  —  Penalty  for  not 
having  weights  and  measures  ex- 
amined. 

5.  Penalty  for  selling  or  buying  by 
weights  or  measures  not  branded  or 
stamped. 

6.  What  shall  be  the  measure  of  an 
acre  of  land. 


Section 

1.  What   weights  and  measures   to  be 

used. 

2.  Justices  to  procure  weights  and  mea- 

sures— Also  brands  and  stamps. 

3.  Standard   keeper  to  be  appointed — 

His  oath  and  bond. 

4.  Weights  and  measures  to  be  carried 

to  the  standard  keeper,  by  the  per- 
sons using  them,  once  in  two  years. 


1.   Be  it  enacted  by  the  General  Assembly  of  the  State  ofJ^orth 

Carolina^  and  it  is  hereby  enacted  by  the  authority  of  the  same^ 

What  weights  That  no   trader   or  other   person  shall  buy  or   sell,  or  otherwise 

and  measures  ,  ^.  ,.  ^,  .,  •'  •', 

to  be  used.  m.ake  use  oi  m  tradmg,  any  other  weights  or  measures,  than  are  made 
and  used  according  to  the  standard  in  the  exchequer  of  England, 
and  which  have  been  heretofore  used  in  this  State. 

Justices  to  pro-      2.   The  justices  of  each  and   every  county  within  this   State 

cure  weights  ghg]]  at  the  charge  of  each  county  respectively,  provide  sealed 
weights  ol  hundred,  halt  hundred,  quarters  of  hundred,  half  quar- 
ters of  hundred,  seven  pounds,  four  pounds,  two  pounds,  one 
pound,  and  a  half  pound,  and  measures  of  ell  and  yard  of  brass  or 
copper,  and  measures  of  half  bushel,  peck  and  gallon  of  dry  mea- 
sure, and  a  gallon,  pottle,  quart  and  pint  of  wine  measure,  and  the 

ttamps^"*^^^°*^s3'd  justices  shall  also  find  and  provide  a  stamp  for  brass,  tin,  iron, 
lead  or  pewter  weights  or  measures,  and  also  a  brand  for  wooden 
measures,  of  the  letters  N.  C 

Standard  keep-      3.   The  weights  and  measures,  stamps   and  brands,   thus  pro- 

er  to  be  ap- 

pointed. 

'^  1.  1741,  c.  32,  s.  2. 

2.  1741,  c.  32,  s.  3.— 1S27,  c.  22,  s.  1. 

3.  1741,  c.  32,  s.  3.— 1827,  c.  22,  s.  3.-1816,0.  901,  s.  2. 


Chap.  CXX.]     weights  and  measures.  611 

vided,  shall  be  kept  at  the  court  bouses  of  the  respective  counties  His  oath  and 
by  a  standard  keeper,  to  be  elected  by  the  justices  of  the  county  °" 
courts,  at  least  seven  being  present,  of  whom  it  shall  require  a 
majority  to  elect,  and  the  person  thus  elected  shall  in  open  court 
take  the  oaths  required  for  public  officers,  and  also  an  oath  of 
office,  and  shall  give  bond,  with  good  and  sufficient  security,  pay- 
able to  the  State  of  North  Carolina,  in  the  sum  of  two  hundred 
dollars,  and  conditioned  for  tiie  safe  keeping  of  the  weights  and 
measures,  stamps  and  brands  aforesaid,  and  for  the  faithful  per- 
formance of  the  duties  of  his  appointment. 

4.  Every  person  whatsoever  using  weights  or  measures,  shall  Weights  and 
bring  all  his  weights  and  measures  and  steelyards  to  the  keeper  of  [^rrfe'd^o  the  ^ 
the  standard  of  the  county,  where  such  person  shall  reside  or  trade,  standard  keep- 
to  be  there  tried  by  the  standard  ;  and  every  trader  or  dealer  by  using'^them°°^ 
profession,  and  every  miller  shall,  at  least  once  in  every  two  years  once  in  two 
thereafter,  cause  their  weights,  measures  and  steelyards  to  be  re- tried!' 
examined  and  adjusted  by  the  standard  keeper  of  the  county,  in 

which  such  weights  and    measures   are  used  ;    and  the  standard 

keeper  shall, .when  practicable,  mark  by  stamp  or  brand  the  weights, 

measures  and  steelyards,  found  or  made  to  agree  with  the  standard,  standard  keep- 

and  shall  give  a  certificate  of  such  examination  and  adiustment,  er  to  give  cer- 

stating  the  weights,  measures  and  steelyards  by  him  examined  and  '  ^^  '^^' 

adjusted  ;  and  every  person  using,   buying  or  selling  by  weights 

and  measures,  neglecting  to  comply  with  the  requisites  of  this  sec-  p     i,    r 

tion,  shall  forfeit   the  sum  of  fifty  dollars,  to  be  recovered,  in  the  having  weights 

name  of  the  State,  at  the  instance  of  the  standard  keeper,  one  half  ^"'^  ™^^^"''*'^ 

to  the   use   of  the  county,  where  the   offence  is   committe<l,  the 

other  half  to  the  use  of  the  standard  keeper  prosecuting  therefor. 

5.  If  any  person  shall  buy,  sell  or  barter  by  any  weight  or  raea-p"'*^'^^,^"!'.®^^' 
sure,  which  shall  not  be  tried  by  the  standard,  and  sealed  or  stamp- by  weights  or 
ed  as  aforesaid,  he  shall  for  every  such  offence  forfeit  and  pay  the  bJancled  o""*^ 
sum  of  forty  dollars  ;  and  if  any  person  shall   sell  and  deliver  any  stamped. 
kind  of  grain,  salt  or  other   articles   in   a  less  measure,  than  the 

standard  established  by  law,  he  shall  forfeit  and  pay  for  each  of- 
fence the  sum  of  forty  dollars,  to  be  recovered  before  any  juris- 
diction having  cognizance  of  the  same,  and  applied  to  the  use  of 
the  person  suing  for  the  same. 

6.  The  measure  of  an  acre  of  land  in  this  State,  shall  be  equal  ^JJ^^gJ^^-i^^f 
to  a  rectangle  of  sixteen  perches  in  length  and  ten  in  breadth,  and  an  acre  of 
shall  contain  one  hundred  and  sixty  square  perches,  or  four  thousand 

eight  hundred  and  forty  square  yards  ;  six  hundred  and  forty  such 
acres  being  contained  in  a  square  mile. 

4.  1741,  c.  32,  s.  4  and  5.— 1S18,  c.  965,  s.  1.-1823,  c.  1226. 

5.  1741,  c.  32,  s  4.— 1779,  c.  160,  s.  1.— 34  Edw.  3,  c.  5. 

6.  33  Edw.  1,  Stat.  6. 


612 


WIDOWS. 


[Chap.  CXXL 


CHAPTER  121. 


VT  I  D  O  IV  S  . 


AN  ACT  CONCERNING  WIDOWS. 


Section 

1 .  Widows  may   dissent  from  the  will 

of  their  husbands,  and  upon  doing 
so,  or  in  cases  of  intestacy,  shall 
have  one  third  of  the  lands  of 
which  their  husbands  died  seized 
and  possessed  assigned  to  them  for 
life  as  dower — Proviso,  that  fraudu- 
lent conveyances  shall  not  defeat 
dower — Dower  to  include  the  dwel- 
ling house,  &c. 

2.  Widows  to  petition   for   dower,  and 

the  proceedings  thereon. 

3.  Jury  not  restricted  to   assign  dower 

in  each  separate  tract. 

4.  Proceedings  on  petition  for  dower  to 

be  in  a  summary  way. 

5.  Duty  of  the  jury  in  laying  off  dower 

when  the  widow  has  dissented  from 
her  husband's  will. 

6.  Widows  to  be   endowed  of  equities 

of  redemption  or  other  equitable  or 
trust  estates. 

7.  How  widows  shall  proceed  who  may 

be  entitled  to  dower  in  this  State, 
and  also  in  other  states. 

Dower  not  to  be  subject  to  the  de- 
ceased husband'^  debts. 

Widows  may  bequeath  the  crops 
growing  on  their  dower  lands. 

Alienation  by  widows  of  their  dower 
lands,  with  or  without  warranty,  to 
pass  nothing  but  the  dower  interest. 

If  a  wife  leave  her  husband,  and  go 
off  with  an  adulterer,  she  shall  lose 
her  dower. 

To  what  share  of  the  personal  es- 
tate a  widow  shall  be  entitled  in 
case  of  her  husband's  intestacy. 


8. 


9. 


10. 


n. 


12. 


14. 


15. 


16. 


17. 


Section 

13.  How  the  widow's  share  of  the  per- 
sonal estate  shall  be  allotted  to  her 
when  she  dissents  from  her  hus- 
band's will. 

Widow,  in  relation  to  creditors,  shall 
be  considered  a  legatee. 

Provision  for  widows  of  intestates 
dying  and  leaving  no   kindred  that 

are  known. 

Widow  to  give  bond  to  refund  in  case 
any  of  the  next  of  kin  should  ap- 
pear. 

Widows  of  intestates  may  take  pos- 
session of  the  whole  personal  es- 
tate till  administration  be  grant- 
ed. 

18.  Widow  may  petition  the  county  court 

for  year's  provisions — How  the 
same  shall  be  allotted  to  her. 

19.  Where  there  is  no  crop,  &c.  on  hand, 

the  value  of  the  year's  provisions 
must  be  assessed  in  money,  or  spe- 
cific articles  of  personal  property 
be  assigned  to  her. 

20.  The  crop,  stock,  &c.  allotted  to  the 

widow,  shall  be  vested  in  her  for 
the  use  of  herself  and  family — The 
administrator  shall  not  be  account- 
able for  the  same  as  assets. 

Widow  to  have  certain  articles  in 
addition  to  her  year's  provisions. 

Widows,  dissenting  from  their  hus- 
band's will,  to  be  entitled  to  a  year's 
provisions. 

The  costs  of  the  petition  for  a  year's 
provision  to  be  paid  by  the  admin- 
istrator out  of  the  assets  of  the 
estate — Proviso. 


21. 


22. 


23. 


Widows  may  1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JYbrth 
the^wii/of"  Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
their  husbands,  That  if  any  person  shall  die  intestate,  or  shall  make  his  last  will 
^o'^o^^n^cases^  ^"^  testament,  and  not  therein  make  an  express  provision  for  his 
of  intestacy,     wife,  by  giving  and   devising  unto  her  such  part  or  parcel  of  his 


1.  1784,  c.  204,  s.  8. 


Chap.  CXXL]  widows.  613 

real  or  personal  estate,  or  to   some  other  for  her  use,  as   shall  be  s^ll  have  one 
fully  satisfactory  to  her,  such  widow  may  signify  her  dissent  thereto,  j^iids  of  which 
before  the  judge  of  the  superior  court,  or  in  the  county  court  of  the  their  husbands 
county,  wherein  she  resides,  in  open  court,  within  six  months  after  and  p^o"sessed 
the  probate  of  the  said  will  ;  and  then  and  in  that  case,  she  shall  be  assigned  to 
entitled  to  dower  in  the  following  manner,  to  wit  :  one  third  part dow^r"'^ 
of  all  the  lands  and  tenements  and   hereditaments,   of  which  her 
husband  died  seized   and  possessed  :   Provided  ahoays,  that  any  Proviso,  that 
conveyance,  made  fraudulently  to  children  or  otherwise,  whh  an  ve^"*^n"eT*shall" 
intention  to  defeat  the  widow  of  her  dowser  hereby  allotted,  shall  not  defeat 
be  held  and  deemed  to  be  void  ;  and  such  widow  shall  be  entitled  *^°^^'^''" 
to  dower  in  such  land,  so  fraudulently  conveyed,  as  if  no  convey- 
ance had  been  made  ;  which  said  third  part  shall  be  and  enure  to 
her  own  proper  use,  benefit  and  behoof,  for  and  during  the  termof  ^"^^  ^]^°  ^"^^ 
her  natural  life  ;  in  which  said  third  part  shall  be  comprehended  dwelling  house, 
the   dv*  elling  house,  in   which   the  said  husband  shall  have   been  ^'^' 
accustomed   to  dwell   most  generally  next  before   his   death,  and 
commonly  called   the  mansion  house,  together  with  the   offices, 
out  houses,  buildings  and  other  improvements  thereunto  belonging 
or  appertaining  :   Provided  always^  that  in  case  it  should  appear  to 
the  said   judge  or  justices  that  the  whole  of  the  dwelling  house, 
out  houses,  offices  and  appurtenances  cannot  be  applied  to  the  use 
of  the  wife,  without  manifest  injustice  to   the   children   or   other 
relations,  then  and  in  that  case  such  widow  shall  be  entitled  to  such 
part  or  portion  of  said  dwelling  house,  out  houses,  offices  and  im- 
provements  thereunto   belonging,  as  they  shall  conceive  will  be 
sufficient  to  afford  her  a  decent  residence,  due  regard  being  had  to 
her  rank,  condition  and  past  manner  of  life  ;  which  dwelling  house, 
out  houses,   offices  and   improvements,   or   such  part  thereof  so 
allotted  the  said  wddow,  shall  be  and  enure  to  her  during  the  term 
of  her  natural  life. 

2.   It   shall  and   may  be  lawful  for  any  w'idow,  having  claim  to  widows  tope 
dower,  to  file  her  petition  in  the  superior  court,  or  county  court,  of  tit'o"  for 
the  county,  where   her  husband  shall  have  usually  dwelt,  setting  proceedino-s 
forth  the  nature  of  her  claim,  and  particularly  specifying  the  lands, 'hereupon, 
tenements  and  hereditaments,  of  which  her  husband  died  seized  or 
possessed,  and   praying   that  her  dower   may  be   allotted  to  her  ; 
whereupon  the  said  court  shall  issue  their  writ  to  the  sheriff  of  the 
county,    where    the    lands,  tenements    and   hereditaments   of   the 
deceased  husband  lie,  commanding  him  to  summon  twelve  free- 
holders, connected   with  the   parties   neither   by  consanguinity  or 
affinity,  and  entirely  disinterested,  who  upon  oath    (which  oath  the 
sheriff  is  hereby  empowered  to  administer)   shall  allot  and  set  off 
to  the  said  widow   one  third  part  of  all  the  lands,  tenements   and 
hereditaments  in  said  county,  of  which  the  said  husband  was  so  as 
aforesaid  seized   or  possessed,  and  shall  put  her  in   possession  of 
the  same,  which  possession  shall  vest  in  her  an  estate  for  her  nat- 
ural  life,  in  the   third  part  of  the   lands,  tenements   and  heredita- 
ments, of  which  her  husband  was   so  as  aforesaid  seized  or  pos- 
sessed ;  and  the  said   sheriff  or  freeholders  shall  ^so  put  her  iu 

2.   1784,  c.  204,  f.  9. 


614 


WIDOWS. 


[Chap.  CXXI. 


Jury  not  re- 
stricted to  as- 
sign dower  in 
each  separate 
tract. 


Proceedings  on 
petition  for 
dower  to  be  in 
a  summary 
way. 


Duty  of  the 
jury  in  laying 
off  dower 
when  the 
widow  has  dis- 
sented from  her 
husband's  will. 


Widows  to  be 
endowed  of 
equities  of  re- 
demption or 
other  equitable 
or  trust  estates. 

How  widows 
shall  proceed 
who  may  be 
entitled  to 
dower  in  this 
State,  and  also 
in  other  states. 


possession  of  the  house  or  mansion,  or  part  or  portion  thereof,  in 
which  her  said  husband  dwelt  most  generally  next  before  his  de- 
cease, and  of  all  offices,  out  houses,  buildings  and  improvements 
thereunto  belonging  or  in  any  way  appertaining  ;  and  in  case  of  the 
lands,  tenements  and  hereditaments,  that  were  of  the  estate  of  the 
deceased,  lying  in  different  counties,  the  courts  shall  issue  their 
writs  to  the  sheriffs  of  the  several  counties  respectively,  command- 
ing them  as  aforesaid,  which  writs  shall  be  executed  in  manner  as 
aforesaid  directed,  where  the  lands,  tenements  and  hereditaments 
lie  in  the  same  county. 

3.  The  jury,  summoned  as  aforesaid  for  the  purpose  of  assign- 
ing dower  to  a  widow,  shall  not  be  restricted  to  assign  the  same 
in  every  separate  and  distinct  tract  of  land,  of  which  her  husband 
may  die  seized  and  possessed  ;  but  may  allot  to  her  her  portion  of 
the  whole  in  one  or  more  tracts,  having  a  due  regard  to  the  interest 
of  the  heirs  as  well  as  to  the  right  of  the  widow. 

4.  The  proceedings  upon  such  petitions  for  dower  shall  be  in  a 
summary  manner,  and  the  judges  or  justices  shall,  at  the  first  court 
where  such  petitions  are  filed,  proceed  to  hear  and  determine  as 
to  them  shall  seem  just  and  right  :  Provided  ahvays,  that  the  party 
petitioning  for  dower  shall  give  ten  days  previous  notice  to  the 
heirs,  and  shall  serve  them  with  a  copy  of  the  said  petition. 

5.  When  a  widow  has,  by  virtue  of  the  power  given  to  her  in 
the  first  section  of  this  act,  signified  her  dissent  from  her  husband's 
will,  and  the  sherifi:",  in  consequence  thereof,  and  by  order  of  the 
court  for  that  purpose  made,  has  summoned  a  jury  agreeably  to 
this  act,  to  allot  and  set  off  to  such  widow  her  dower  of  hei*  said 
husband's  lands,  it  is  hereby  declared  to  be  the  duty  of  the  jury  so 
summoned,  to  allot  to  the  petitioner  her  dower  according  to  the 
provisions  of  this  act,  deranging  in  as  small  a  degree  as  practicable 
the  devises  of  her  husband's  will. 

6.  When  a  man  shall  die,  seized  of  an  equity  of  redemption  or 
other  equitable  or  trust  estate  in  fee,  his  wife  shall  be  entitled  to 
dower  therein,  subject  to  valid  incumbrances  thereon,  in  the  same 
manner  as  she  is  entitled  to  be  endowed  of  a  legal  estate  of  inheri- 
tance. 

7.  Whenever  any  widow,  on  the  death  of  her  husband,  shall 
become  entitled  to  dower  in  his  lands  in  this  State,  and  also  in 
any  other  state  or  states,  and  such  widow  cannot  without  suit 
obtain  assignment  of  her  dower,  for  want  of  the  consent  of  the 
terretenants,  or  because  of  legal  inability  in  one  or  more  of  the 
terretenants,  if  such  husband  shall  have  been  at  the  time  of  his 
death,  a  resident  of  this  State,  or  not  a  resident  at  that  time  of  any 
of  the  states,  in  which  his  said  lands  lie,  and  in  this  last  case,  the 
most  valuable  part  of  his  lands  shall  he  in  this  State  ;  it  shall  be 
lawful  for  such  widow  to  proceed  in  obtaining  the  assignment  of 
her  dower  in  all  the  lands  of  her  deceased  husband,  lying  in  this 


3.  1827,  c.  46. 

4.  1784,0.  204,  s.  10. 

5.  1701,  c.  3.31,  s-  1,  amenckd. 

6.  1828,  C.  14. 

7.  1831,  c.  25. 


or 


CHA.P.  CXXL]  WIDOWS.  615 

and  other  states,  as  aforesaid,  in  the  same  manner  and  under  the 
same  rules,  regulations  and  restrictions,  as  are  prescribed  for  ob- 
taining partition  of  lands  devised  or  descended  to  any  persons  as 
parceners,  tenants  in  common  or  joint  tenants  when  such  lands  lie 
in  this  and  other  states  as  before  described. 

8.  The  dower  of  a  widow  in  the  lands  of  her  deceased  husband,  Dower  not  to 
and  also  such  lands  as  may  be  devised  to  her  by  his  will,  if  such  the^deceLed 
lands  do  not  exceed  the  quantity  she  w^ould  be  entitled  to  by  right  husband's 
of  dower,  shall  not  be  subject  to  the  j)ayment  of  debts,  due  from 

the  estate  of  her  husband,  during  the  term  of  her  life. 

9.  A  widow  may  bequeath  the  crop  in  the  ground  of  the  land  Widows  may 

holden  by  her  in  dower.  crops^.l^c  ^^^ 

10.  No  alienation  made  by  a   widow,  either  with   or   without  ^^jj,,j^'j^^Iqjj  j^ 
covenants  of  wairanty,  of  the  lands  holden    by  her  in  dower  or  of  widows  of 
the  gift   or  devise  of  her  husband,  shall  have  any  other  or  further  ja^J[g  °^^^^ 
effect,  than  to  pass  her  own  interest  in  the  same.  without  war- 

11.  If  a  wife  willingly  leave  her  husband  and  go  away  and  con- !!!^"'^' .„*^; 

•  .  o  */  "-^  „*^  ,       ii  a  wiie  leave 

tmue  with  her  adulterer,  she   shall  be  barred  forever  of  any  claim  iier  husband, 
to  dower  in  the  lands  of  such  husband,  unless   her   said  husband  ^""^  st>  off  with 
shall  have  willingly  become   reconciled  to  her  and  suffered  her  to  she  shall  lose 
dwell  with  him  ;  in  which  case  she  shall  be  restored  to  her  claim,  her  dower. 

12.  If  any  husband  shall  die  intestate,  or  having  left  a  will,  there  j,f°j^gp'g^j,Q^^j 
be  a  surplus  undisposed  of  in  said  will,  the  widow  of  such  husband  estate  a  widow 
shall  be  entitled  to  one  third  part  of  his  personal  estate,  or  of  the  ^^g^  ij^^j![g"J^^l- 
residue  undisposed  of  in  his  will,  remaining  after  the  payment  of  her  husband's 
his  debts  and  the  charges  of  settling  his  estate  :   Provided  there  be  ^^  ^^^^^y- 

no  children,  or  not  more  than  two  children  of  such  husband  ;  but 
if  there  be  more  than  two  children,  then  the  widow  may  be  en- 
titled to  a  child's  part  of  her  said  husband's  personal  estate,  or  of 
the  surplus  undisposed  of  as  aforesaid. 

13.  When  a   widow,  who  may  have  dissented  from  her  hus-H.°^*hs, 
band's  will,  shall  claim  the  share  of  the  personal  estate,  to  which  of  the  personal 
she  may  be  entitled,  it  shall  be  the  duty  of  the  court  to  allot  the  es|ate  shall  be 

.  ,  1  •    1       1  r     ^  •   •  r  1         1        1         1 1    allotted  to  her 

same  with  as  little  derangement  oi  the  provisions  oi  her  husband  s  when  she  dis- 
will  as  is  practicable  :   Provided  hoioever,  that  she  shall  be  entitled  p^^^  f'"°™  ^% 
to  what  may  be  allotted  her  in  as  full  estate,  as  though  the  same 
had  been  allotted  to  her  in  case  of  intestacy. 

14.  The   widow,  claiming   under  her  husband's  will,   shall  in  Widow,  in rela- 

O  ^  t'         i        .      A' 

relation  to  all  creditors  be  considered  as  a  legatee,  and  be  charge-  ^0°"^  "i^an  be 
able  for  the  whole  amount  of  her  husband's  estate,  that  may  come  considered  a 
to  her  hands,  either  as  legatee  or   in  the  manner  by  this  act   pre-  ^§^ '^^• 
scribed,  and  shall  be  bound  to  refund  to  the  executors  or  adminis- 
trators her  ratable   parts  of  such  debts  or   demands,   as  may  be 
afterwards   sued  for  and  recovered,  or  otherwise  duly  made   ap- 
pear against  the  estate  of  her  deceased  husband,  in  the  same  man- 
ner as  other  legatees,  and  by  the  same  process. 

8.  1791,  c.  351,  s.  4. 

9.  20  Hen.  3,  c.  2. 

10.  11  Hen.  7,  c.  20. 

11.  13  Edw.  1,  c.  34. 

12.  1784,  c.  204,  s.  8.— 1835,  c.  10,  S,  I.— 1784,  c.  225,  s.  4.— 1787,  c.  271. 

13.  1791,  c.  351,  s.  2,  amended. 

14.  1791,  c.  351,  s.  4. 


616  WIDOWS.  [Chap.  CXXr. 

Provision  for  15.  If  any  citizen  of  this  State  shall  die  intestate,  or  having 
testates  dyim^  l^ft  a  will,  in  which  there  is  a  residue  undisposed  of,  and  leaving  a 
and  leaving  no  widow  and  no  kindred  that  are  known  to  exist,  the  widow  may,  at 
areknown.^  the  expiration  of  three  years  from  the  grant  of  administration  on 
the  estate  of  her  husband,  or  the  will  proved,  file  her  petition  in 
the  superior  court  of  law  of  the  county,  in  which  administration 
was  granted,  or  the  will  proved,  against  the  administrator  or  ex- 
ecutor of  her  husband,  stating  the  facts  of  the  case,  and  that  there 
are  no  persons  of  kindred  to  her  knowledge,  and  praying  that  the 
surplus  of  said  estate,  after  debts  and  charges  paid,  may  be  ad- 
judged to  her,  which  petition  shall  be  sworn  or  affirmed  to  by  said 
widow  ;  and  copies  thereof  shall  be  served  upon  the  administrator 
or  executor  as  in  other  cases  of  petition,  and  the  same  proceed- 
ings shall  be  thereupon  had  as  in  other  cases  of  petition.  The 
court  shall  order  notice  of  the  filing  of  said  petition,  of  the 
facts  therein  stated  and  of  the  prayer  thereof,  to  be  published  in 
some  newspaper,  printed  at  the  seat  of  government  of  this  State, 
for  at  least  four  months,  and  if,  at  the  next  term  of  said  court,  no 
claimant  shall  appear,  a  jury  shall  be  empanelled  to  inquire  whether 
there  be  any  known  kindred  of  the  said  intestate  ;  and  if  said  jury, 
after  hearing  the  petition  and  answer,  and  such  testimony  as  may 
be  offered,  shall  find  that  there  was  not  any  known  kindred  of  said 
intestate,  living  at  his  decease,  the  court  shall  adjudge  and  decree 
that  the  administrator  or  executor  account  with  the  widow  for  the 
whole  surplus  personal  property,  in  the  hands  of  said  administrator 
or  executor,  after  paying  debts,  legacies  and  charges  of  adminis- 
tration ;  and  such  accounts  shall  be  taken,  as  accounts  are  taken 
in  other  cases  of  petition  in  said  court  for  distributive  shares  of 
intestates'  estates,  and  judgment  shall  be  rendered  against  such 
administrator  or  executor  for  the  said  surplus  :  Provided  always^ 
that  it  shall  be  lawful,  at  any  time  pending  said  petition,  for  any 
person,  claiming  to  be  kin  to  the  intestate,  to  apply  to  the  said 
court  by  petition  to  authorize  him  to  be  made  defendant  to  said 
petition,  and  to  contest  the  facts  staled  in  the  petition. 
Widow  to  give  16.  When  the  said  court  shall  adjudge  the  said  surplus  to  be 
iti°case*a'iw"of  V^^^i  ^^^^  ^^^^  widovv  or  some  person  for  her,  in  addition  to  the 
the  next  of  kin  refunding  bond  required  of  distributees,  shall  enter  into  bond  in 
should  appear.  (JQy|j]g  jj^g  g^j-f^  gg  recovered,  with  two  good  securities,  with  con- 
dition that  the  said  widow  shall  refund  to  the  next  of  kin  to  her 
deceased  husband,  the  said  surplus  of  said  estate,  provided  they 
make  claim  tliereof,  within  seven  years  after  such  judgment,  or 
within  the  period  hereinafter  allowed  for  the  claim  of  such  said 
kindred,  as  may  be  within  the  disabilities  hereafter  provided  for  : 
Provided,  that  nothing  herein  contained  shall  affect  the  right  of 
such  next  of  kin,  as  at  the  date  of  said  bond  may  be  infants,  non 
compos  mentis,  or  beyond  seas,  who  may  sue  on  said  bond  within 
three  years  next  after  such  disability  removed. 

17.   Where   a  man  shall  die  intestate,  leaving   a  widow,  it  shall 


Widow  of  in- 
testate may 


15.  1323,  c.  1182,  s.  1.— 1S31,  c.  23. 

16.  1823,  c.  11S2,  s.  2. 

17.  1796,  c.  469,  S.  1. 


Chap.  CXXL]  widows.  617 

be  lawful  for  her  to  take  into  her  charge  and  possession  the  whole  take  posses- 
of  the  personal  estate  of  such  intestate  ;  and  it  shall  be  lawful  for  the  whole  Versonal 
said  widow  to  use  so  much  of  the  crop,  stock  and  provisions,  then  estate  till  ad- 
on  hand,  as  may  be  absolutely  necessary  for  the  support  of  herself  ™'j[^n^ed!^^°'^ 
and  family,  until  such  time  as  letters  of  administration  are  or  may 
be  granted  on  the  estate  of  her  deceased  husband,  when  her  right 
to  the  possession  of  the  said  personal  estate  by  virtue  of  this  sec- 
tion shall  cease  :  Provided  always,  that  it  shall  be  the  duty  of  the 
widow,  claiming  under  this   section,   to  apply  for  administration 
upon  such  estate  at  the  first  court,  which  shall  be  held   after  her 
husband's  decease,  in  the  county  in  which  he  usually  resided. 

18.  It  shall  and  may  be  lawful  for  such  widow,  at  or    before  ^^^f^?^^  "?^y 

1  ,1  ™      ,     .    .  .  ,  petition  the 

the  same  court,  when  letters  oi  admmistration  are  granted,  to  pe- county  court 
tition  the  court  to  appoint  one  justice  of  the  peace  and  three  free-  f^jear's  pro- 

»  •!•  ■  Visions 

holders,  unconnected  with  the  said  widow,  whose  duty  it  shall  be 

to  view  the  estate  of  such  intestate,  and  to  allot  and  appoint  out  How  the  same 

such  part  of  the  crop,  stock  and  provisions,  as  they  may  conceive  ^'^f'^^'j^gj?^^'"''" 

necessary  and  adequate  for  the  support  of  the   widow  and  family 

for  the  space  of  one  year,  and  under   their  hands  and  seals  make 

return,  to  the  next  succeeding  court,  of  the  quantity  and  articles  by 

them  laid  off  and  allotted  to  the  widow   and   family;  having  first 

taken  an  oath  that   they  will  faithfully  and  impartially,  to  the  best 

of  their  knowledge   and  ability,  give  and  apportion  to  said  widow 

and  family  so  much  or  such  part  of  the  crop,  stock  and  provisions, 

as  they  may  deem  necessary  for  the  support  of  the  widow  and  family 

for  one  year  and  no  more. 

19.  If  there  shall  be  no  crop,  stock   or   provisions  on  hand,  or  Where  there  is 
not   sufficient  to   aftbrd  such   allowance,    the  commissioners  shall  o°]^an^' the 
proceed  to  estimate  the  value  of  a  year's  provisions   for  the  said  '^'alue  of  the 
widow  and  family,  and  may,  if  such  petition   is  filed  before  the  vislons^must  be 
court,  at  Avhich  administration  is  granted,  allot  and  set  over  to  her  assessed  in 
any  article  or  articles  of  the  personal  property,  (negroes  excepted,)  dfic^JnideTof 
of  such  intestate,  and  also  any  debt  or  debts  known  to  be  due  such  P^rso'ial  prop- 
intestate  ;  and  such  allotment  shall  vest  in  such  widow  the  right  to  edLher!^^°"' 
collect,  by  warrant  or   otherwise,   by  action  of  debt  in   her  own 

name  the  debt  or  debts  so  allotted  to  her  ;  but  if  the  petition  be 
filed  at  the  court,  when  administration  is  granted,  the  said  com- 
missioners shall  make  return,  under  their  hands  and  seals,  of  the  said 
estimate  to  the  next  court  of  pleas  and  quarter  sessions  ;  where- 
upon it  shall  be  the  duty  of  the  court  to  decree  that  the  same  be 
paid  by  the  administrator,  who  shall  be  allowed  the  same  in  the 
settlement  of  his  accounts,  and  may  plead  the  same,  or  give  it  in 
evidence  under  the  plea  of  fully  administered,  to  any  claim  which 
may  be  brought  against  him  ;  and  such  sum  shall  not  be  taken  into 
account  so  as  to  bar  the  widow^  of  any  part  of  her  distributive 
share. 

20.  The  appointment  or  allotment  of  the  crop,  stock  and  pro- The  crop,  stock, 
visions,  or  of  any  articles  of  personal  property  in  lieu  thereof  as^*^g'^|J(°' 


&c.  allotted  to 

w 


18.  1796,0.  469,  s.  2.— 1832,  c.  20,  s.  1. 

19.  1^13,  c.  853.— 1832,  c.  20,  s.  2. 

20.  1796,  c.  469,  s.  3. 

VOL.   I.  78 


618  WIDOWS.  [Chap.  CXXI. 

shall  be  vested  above  provided,  shall  vest  in   the   said  widow   an   absolute  right 
use^of  herseff  therein  to  her  own  use,  and  the  use  of  her  children,  but  shall  nev- 
and  family.       ertheless  be  returned,  in  the   inventory  of  said  estate,  by  the  ad- 
ministrator, therein   notifying  that  the  same  has   been   given   and 
allowed  the  widow  for  her  support :  which  notification  and  return 
of  the  persons  so  appointed  by  the  said  court,  shall  exonerate  such 
administrator  from  being  accountable   for  the  same,  either  to  the 
The  adminis-    claimants  upon  the  estate  of  the  deceased  or  creditors,  and  shall 
trator  shall  not  ^^^  ^^  considered  as  assets  in  his  hands,   for  which  he  shall  be 
for  the  same  as  liable  or  accountable  ;  and  the  said  part  or  portion  of  the  estate,  so 
assets.  given  to  the  widow,  shall  not  debar  her  from  the  distributive  share 

now  allowed  by  law. 
Widow  to  have      21.   In  addition  to  the  provisions  for  the  year's  support  of  the 
in'^addition'to^  widow  and  family  of  persons  dying  intestate,  the  widow  of  every 
her  year's  pro-  such  person,  SO  dying  intestate,   shall  be  entitled  to  one  bed  and 
visions.  j^g  necessary  furniture,  and  one  wheel   and  one  pair  of  cards,  if 

such  articles  be  among  the  goods  of  her  deceased  husband,  which 
shall  be  her   absolute  property,   and   shall  be   exempted  from  all 
claims  either  of  the  administrators  or  of  the  creditors  of  said  estate, 
under  the  same  rules  and  regulations  as  the  articles  for  her  year's 
support  are. 
Widows  dis-         22.   Where  any  widow  may  enter  her  dissent  from  her  husband's 
thdr^fusba^d's^^^^^  within  six  months  after  the  probate  of  such  will,  she  may,  within 
will  to  be  en-    six  months  after  probate  of  such  will,  file  her  petition  in  the  court, 
year's'^pro-       where  the  probate  of  such  will  was  made,  and  shall  recover  out  of 
visions.  the  estate  of  her  husband  one  year's  provisions,  in  the  same  man- 

ner that  she  would  have  done,  if  her  husband  had  died  intestate  : 
which  year's  provision  shall  be  paid  by  the  executor  or  adminis- 
trator in  preference  to  all  other  claims  out  of  the  assets. 
The  costs  of  23.  In  all  cases  where  a  widow  shall  file  her  petition  for  onp 
a^vea%Tro-^°'^y^^'''^  provisions  out  of  her  deceased  husband's  estate,  the  costs 
vision  to  be  of  such  petition  shall  be  paid  by  the  executor  or  administrator,  out 
mTrfis'trator  out  °^  ^^^®  assets  of  the  testator  or  intestate  :  Provided  always,  that  if 
of  the  assets  of  there  should  be  a  deficiency  of  assets  to  pay  the  year's  provision 
Provfs'o'^^'        ^^^  costs  of  petition,  then  the  petitioner  shall  pay  the  costs. 

21.  1824,  c."l244. 

22.  1827,  c.  13.— 1835,  c.  10,  s.  2. 

23.  1835,  c.  10,  s.  3. 


Note.  —  References  to  Adjudged  Cases. 

Sect.  1.  Winstead  vs.  Winstead,  1  Hay.  243.  Jones  vs.  Jones,  I  JMurph.  96.  White- 
head vs.  Clinch,  ib.  123.  Sutton  vs.  Burrows,  2  Murph.  79.  Frost  vs.  Etheridge,  1 
Dev.  30.  Davidson  vs.  Frew,  3  Dev.  3.  Craven  vs.  Craven,  2  Dev.  Eq.  338.  Tatews. 
'J'ate,  I  Dev.  and  Bat.  Eq.  22.  Spencer  vs.  Weston,  1  Dev.  and  Bat.  213.  Littleton 
vs.  Littleton,  ib.  327. 

Sect.  2.  Vi^hitehead  vs.  Clinch,  2  Hay.  3.     Eagles  vs.  Eagles,  ib.  181. 

Sect.  4.  Rayner  vs.  Capehart,  2  Hawks.  375. 

Sect.  19.  Gillespie  vs.  Hymans,  4  Dev.  il9. 


Chap.  CXXII.]  wills  and  testaments. 


619 


CHAPTER    122. 

TTILIiS  AND  TESTAMENTS.  ' 


AN   ACT  CONCERNING  LAST  WILLS  AND  TESTAMENTS. 

Section  /<^4^y 


Section 

1.  What  shall  be  a  good  will  of  lands. 

2.  What  a  good  nuncupative  will,  where 

the  estate  exceeds  two  hundred 
dollars. 

3.  How   a   nuncupative   will   shall    be 

proved. 

4.  The  county  court  shall  have  juris- 

diction of  the  probate  of  wills. 
6.  Appeal  allowed. 

6.  Where  and  how  wills  shall  be  prov- 

ed. 

7.  How  a  will,  made  in  another  state, 

disposing  of  property  in  this  State, 
may  be  proved. 

8.  Wills  to  be   filed   in   the  clerk's  of- 

fice. 

9.  Probates  of  wills  evidence  of  the  de- 

vise of  real  estate,  and  copies  may 
bo  received  as  originals. 

10.  Devises  construed  to  be  in  fee  sim- 

ple, unless  the  contrary  plainly  ap- 
pears. 

11.  Construction   of   a  limitation,  upon 

dj'ing  without  issue. 

12.  How  a  written  will  of  lands  may  be 

revoked. 

13.  How  a  will  of  personal  property,  of 

greater  value  than  two  hundred  dol- 
lars, maybe  revoked — Of  the  value 
of  two  hundred  dollars  or  less,  how. 

14.  No  person,  under  eighteen  years,  can 

make  a  will  of  chattels. 


eA  ^4 


15. 


16. 


A  devise  to  a  child  shall  vest  in  his 
children,  if  he  die  before  the  tes- 
tator. 

Children,  bora  after  the  making  of 
their  parent's  will,  may  petition  for 
a  provision. 

17.  Court  to  decree  a  share  of  the  per- 

sonal estate,  and  appoint  com.- 
missioners  to  allot  a  share  of  the 
real. 

18.  Commissioners'  duty  in  making  the 

allotment. 

19.  Legatees   to    contribute  proportion- 

ally. 

20.  What  decree  the  court  may  make  on 

the  return  of  the  commissioners. 
After  a  decree,  the  petitioners  to  be 

deemed  legatees  and  devisees. 
If  no  petition  be  filed  by  an  after-born 

chdd  within  two  years,  executors  to 

file  a  bill  or  petition  of  interpleader. 

23.  Guardian  to  be  appointed  by  the  court, 

if  the  infant  have  none. 

24.  Petition  to  be  a  lien  on  the  lands  de- 

vised. 

25.  Devise   may  be  made  of  an   estate 

held  for  the  life  of  another — Such 
estate,  when  not  devised,  shall  be 
assets  in  the  hands  of  the  heir  of 
the  tenant  for  life,  if  he  take  it  by 
special  occupancy. 


21 


22 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JYorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  no  last  will  or  testament  shall  be  good  or  sufficient,  What  shall  be 
either  in  law  or  equity,  to  convey  or  give  any  estate  in  lands,  ten-  f^^^j"^  ^^^^^  °^ 
ements  or  hereditaments,  unless  such  last  will  shall  have  been 
written  in  the  testator's  life  time,  and  signed  by  him  or  some  other 
person,  in  his  presence  and  by  his  direction,  and  subscribed  in  his 
presence  by  two  witnesses  at  least,  no  one  of  which  shall  be  inter- 
ested m  the  devise  of  the  said  lands  ;  or  unless  such  last  will  shall 


1.   1784,  c.  204,  s.  11.— 1784,  c.  225,  s.  5. 


V 


620 


What  a  good 
nuncupative 
will,  where 
the  estate  ex- 
ceeds two  hun 
dred  dollars. 


How  a  nun- 
cupative will 
shall  be 
proved. 


The  county 
courts  shall 
have  jurisdic- 
tion of  the  pro- 
bate of  wills. 


WILLS    AND    TESTAMENTS.    [ChAP.  CXXII. 

be  found  among  the  valuable  papers  or  effects  of  any  deceased 
person,  or  shall  have  been  lodged  in  the  hands  of  any  person  for  safe 
keeping,  and  the  same  shall  be  in  the  handwriting  of  such  de- 
ceased person,  and  his  name  subscribed  thereto,  or  inserted  in 
some  part  of  such  will,  and  if  such  handwriting  is  generally  known 
by  the  acquaintances  of  such  deceased  person,  and  it  shall  be 
proved,  by  at  least  three  credible  witnesses,  that  they  verily  be- 
lieve such  will  and  every  part  thereof  is  in  the  handwriting  of  the 
person,  whose  will  it  appears  to  be,  then  and  in  that  case  such 
will  shall  be  sufficient  in  law  to  give  and  convey  a  sufficient  estate 
in  lands,  tenements  and  hereditaments. 

2.  No  nuncupative  will  in  any  wise  shall  be  good,  where  the 
estate  exceeds  two  hundred  dollars,  unless  proved  by  two  credible 
witnesses  present  at  the  making  thereof,  and  unless  they  or  some 
of  them  were  specially  required  to  bear  witness  thereto  by  the 
testator  himself,  and  unless  it  was  made  in  his  last  sickness,  in  his 
own  habitation  or  dwelling  house,  or  where  he  had  been  previously 
resident,  ten  days  at  least,  except  he  be  surprised  with  sickness 
on  a  journey  or  from  home,  and  die  without  returning  to  his 
dwelling. 

3.  No  nuncupative  will  shall  be  proved  by  the  witnesses,  after 
six  months  from  the  making,  unless  it  were  put  in  writing  within 
ten  days,  nor  shall  it  be  proved  till  fourteen  days  after  the  death 
of  the  testator,  nor  till  process  has  first  issued  to  call  in  the  widow 
or  next  of  kin,  or  both,  if  conveniently  to  be  found,  to  contest  it 
if  they  think  proper. 

4.  The  courts  of  pleas  and  quarter  sessions  shall  and  may,  within 
their  respective  counties,  take  the  probate  of  wills,  and  order  the 
same  to  be  recorded  in  proper  books,  to  be  kept  for  that  purpose, 
and  shall  and  may  make  order  for  issuing  letters  testamentary  and 
letters  of  administration  to  the  persons  entitled  to  the  same  by  law, 
whichletters  shallbe  signed  and  issuedby  the  clerks  of  the  said  courts; 
and  may,  by  summons,  upon  application  to  them  made,  compel 
any  person  or  persons  whatsoever,  within  their  respective  counties, 
having  in  their  possession  any  will  or  testament  of  any  deceased 
person,  to  exhibit  the  same  to  the  court  for  legal  probate  thereof; 
and  whoever,  being  legally  summoned,  shall  in  contempt  of  the 
court  refuse  to  produce  any  such  will  in  his  or  her  possession,  or 
having  been  in  his  or  her  possession,  shall  refuse  to  inform  the 
court  on  oath  where  such  will  then  is,  or  in  what  manner  he  or 
she  hath  disposed  of  the  same,  such  person  shall  by  order  of  court 
be  committed  to  the  common  prison  of  the  county,  there  to  remain, 
without  bail  or  mainprise,  until  such  will  shall  be  produced  and 
due  submission  made  to  the  court  for  the  contempt  ;  and  the  court 
shall  be  and  is  hereby  empowered,  in  case  of  such  person's  re- 
moval, to  issue  such  summons  and  process  for  commitment  into 
any  county  within  this  State. 

2.  1784,  c.  204,  s.  15. 

3.  1784,  c.  204,  S.  16. 

4.  1777,  c.  115,  s.  S7. 


Chap.  CXXIL]  wills  and  testaments.  621 

5.  If  any  person  who  shall  claim  a  right  to  execute   any  will,  Appeal  allow- 
shall  think  himself  injured  by  order   of  court    for  letters  testa-  ^  " 
mentary,  he  shall  be  entitled  to  an  appeal  to  the  superior  court  of 

the  county,  where  such  order  shall  be  made,  subject  to  the  same 
regulations  as  in  other  cases  of  appeal. 

6.  All  wills  shall  be  proved  in  the  county,  where  the   testator  Where  and 
had  his  usual  residence  at  the  time  of  his   death,  or  in  case  he  or  t^g  proved.^  ^ 
she  had  fixed  places  of  residence  in  more  than  one   county,  in 

either  or  any  of  the  said  counties  ;  and  in  case  of  a  written  will, 
with  witnesses  thereto,  the  same  shall  be  proved  by  at  least  one  ot 
the  subscribing  witnesses,  if  living,  but,  if  contested,  shall  be 
proved  by  all  the  living  witnesses,  if  to  be  found,  and  by  such 
other  persons  as  may  be  produced  to  support  such  will ;  and 
where  the  validity  of  any  last  will  or  testament,  whether  written  or 
nuncupative,  shall  be  contested,  the  same  shall  be  invariably  tried 
by  a  jury,  on  an  issue  made  up,  under  the  direction  of  the  court, 
for  that  purpose. 

7.  Whenever  it   shall  be  suggested   to   the  court  of  pleas  and  How  a  will 
quarter  sessions  in   any  county,  that  a  will  has  been  made  without ™^jj^^^-gp°g|]^^^ 
the  State,  disposing  of  or  charging  lands  or  other  property  situate  of  property  in 
within  the   same,  it  shall  be  competent  for  said  court  to  order  a  depraved' "^'^^ 
commission  or  commissions  to  issue  to  such  person  or  persons,  as 

it  may  select,  and  to  be  returned  at  any  subsequent  term  thereof, 
authorizing  the  commissioner  or  commissioners,  or  such  number 
of  them  as  it  may  designate,  to  take  the  examination  of  such  wit- 
nesses, as  may  be  produced,  touching  the  execution  thereof,  and 
upon  return  of  such  testimony,  the  court  may  proceed  to  adjudge 
the  said  will  to  be  or  not  to  be  duly  proved,  in  the  same  manner 
as  it  now  can  on  the  oral  examination  of  a  witness  or  witnesses  in 
open  court. 

8.  All  original  wills  shall  remain  in  the  clerk's  office,  among  the  Wills  to  be 
records    of  the    respective    counties,  where    the    same    shall  be  cierk'T office. 
proved,  and  to  the  said  wills  any  person  may  have  access,  as  to 

the  other  records,  except  for  the  time  they  shall  or  may  be 
removed  before  any  other  court  for  the  determination  of  any  con- 
troversy. 

9.  All  probates  of  wills  in  the  county  courts  shall  be   sufficient  P'!?,^^^^!^^ 

•  Wills  SVlClGllCC 

testimony  for  the  devise  of  real  estates,  and  attested  copies  of  such  of  the  devise 
wills  or  the  records  thereof  by  the  proper  officer  shall  and  may  be^^J^'^^  ?^'^^^'^^' 

.,  .,  •'  i^  ,  ••!  -n-v?  ^^"-  copies  mav 

given  m  evidence  m  the  same  manner  as  the  originals:  r'rot^iaea  be  received  as' 
always,  that  w^hen  any  fraud  may  be  suggested  to  have  been  com-  originals. 
mitted,  in  the  drawing  or  obtaining  any  last  will,  or  any  irregularity 
in  the  execution  or  attestation  thereof,  the  party  making  such  sug- 
gestion, shall  and  may  insist  upon  the  original  will  being  produced 
to  the  court,  if  the  same  is  to  be  found,  and  the  court  wherein  any 
suit  is  depending  and  in  which  such  will  may  be  introduced  as  tes- 

5.  1777,  c.  115,  s.  58. 

6.  1789,  c.  308,  s.  1. 

7.  1835,  c.  13. 

8.  1777,0.  115,  S.  59. 

9.  1784,  c.  225,  s.  6. 


622  WILLS    AND    TESTAMENTS.   [ChAP.   CXXII. 

timony,  may  compel  all  and  every  person  or  persons,  whether  in 
office  or  otherwise,  to  produce  the  same. 
Devises  con-  ^O-   When  any  lands,  tenements  or  hereditaments,  or  other  real 

s trued  to  be  in  estate,  shall  be  devised  to  any  person  or  persons,  the  same  shall 
'ess^the'con-"^"  ^^  ^^^l*^  3"*^  deemed  and  construed  to  be  a  devise  in  fee  simple, 
rary  plainly  unless  such  devise  shall,  in  plain  and  express  words,  shew,  or  it 
ippears.  gj^^jj  |^^  plainly  intended   by  such  will  or  some  part  thereof,  that 

the  testator  intended  to  convey  an  estate  of  less  dignity. 
'Jonstruction  of      n.   Every  Contingent  limitation  in   any  will,  made  to   depend 
\pon  djdng       upon  the  dying  without  heir,  or  heirs  of  the  body,  or  without  issue, 
OTthout  issue,   or  issue  of  the  body,  or  without  children,  or  offspring,  or  descend- 
ant, or  other  relation,  shall  be  held  and  interpreted  a  limitation  to 
take  effect,  when   such  person  shall  die,  not  having  such  heirs  or 
issue  or  other  relation  (as   the  case  may  be)  living  at  the  time  of 
his  death,  or  born  to  him  within  ten  months  thereafter  ;  unless  the 
intention  of  such  limitation  be  otherwise  expressly  declared  in  the 
face  of  the  will  creating  it  :   Provided,  that  the  rule  of  construction, 
herein  contained,  shall  not  extend  to  any  will   made  and  executed 
before  the  fifteenth  of  January,  eighteen  hundred  and  twentyeight. 
How  a  written       12.  No  devise  in  writing  of  lands,  tenements  and  hereditaments, 
will  ot  lands     qj.  gj^y  clause   thereof,  shall  be  revocable,  otherwise  than  by  some 

may  be  re-  •',  ,.,,.  ..  . 

voked.  Other  will  or  codicil  in  writing,  or  other  writing  declaring  the  same, 

or  by  burning,  cancelling,  tearing  or  obliterating  the  same  by  the 
divisor  himself,  or  in  his  presence  and  by  his  direction  and  con- 
sent ;  but  all  devises  of  lands  and  tenements  shall  remain  and  con- 
tinue in  force,  until  the  same  be  burnt,  cancelled,  torn  or  oblitera- 
ted by  the  devisor,  or  in  his  presence  and  by  his  consent  and 
direction,  or  unless  the  same  be  altered  or  revoked  by  some  other 
will  or  codicil  in  writing,  or  other  writing  of  the  devisor,  signed 
by  him  or  some  other  person  in  his  presence  and  by  his  direction, 
and  subscribed  in  his  presence  by  two  witnesses  at  least,  or  unless 
the  same  be  altered  or  revoked  by  some  other  will  or  codicil  in 
writing,  or  other  writing  of  the  devisor,  all  of  which  shall  be  in  the 
handwriting  of  the  devisor  and  his  name  subscribed  thereto  or  in- 
serted therein,  and  lodged  by  him  with  some  person  for  safe  keep- 
ing, or  left  by  him  in  some  secure  place  or  among  his  valuable 
papers  and  effects,  every  part  of  which  will  or  codicil  or  other 
writing  shall  be  proved  to  be  in  the  handwriting  of  the  devisor  by 
three  witnesses  at  least. 
How  a  will  of  13.  No  will  in  writing,  passing  or  bequeathing  a  personal  estate 
ert'yoT^reat^'r  of  grater  valuc  than  two  hundred  dollars,  or  any  clause  thereof, 
value  than  two  shall  be  revocable,  otherwise  than  bv  some  other  will  or  codicil, 

111111  ^ 

maybe  re-  ^^^ ^^^   Other   Writing   declaring   the   same,  or  by  cancelling,    burning, 

voked.  tearing,  or  obliterating  the  same  by  the  testator  himself,  or  in  his 

presence,  by  his  direction  and  consent  ;  but  such  will  in  writing, 

passing  and  bequeathing  a  personal  estate  of  greater  value  than  two 

hundred  dollars,  shall  continue  and  remain  in  force,  until  the  same 

10.  1784,  c.  204,  s.  12. 

11.  1827,  c.  7. 

12.  1S19,  c  1004,  s.  I. 

13.  1819,  c.  1004.  s.  2.— 17S4,  c.  204,  s.  14. 


Chap.  CXXIL]  wills  and  testaments.  623 

shall  be  burnt,  torn,  cancelled  or  obliterated  by  the  testator  him- 
self, or  in  his  presence,  by  his  direction  and  consent,  or  unless  the 
same  be  altered  or  revoked  by  some  other  will  or  codicil,  or  other 
writing  executed  in  the  same  manner  and  with  the  same  formalities 
as  a  will  good  and  sufficient  in   law  to  pass  a  personal  estate  of 
greater  value  than  two  hundred  dollars  ;  and  no  written  will,  passing 
or  bequeathing  a  personal  estate  of  the  value  of  two  hundred  dol-  two  hundred 
lars  or  less,  shall  be  revoked   or  altered  by  a  subsequent  nuncupa- dollars  or  less, 
tive  will,  except  the  same    be,  in  the  hfe  time  of  the  testator,  re-   °^" 
duced  to  writing  and  read  over  to  him  and  approved,  and  unless 
the  same  be  proved  to  have  been  so  done  by  the  oath  of  two  wit- 
nesses at  least,  who  shall  be  such   as   are  admissible  in  trials  at 
common  law. 

14.  No  person  shall  be  capable  of  disposing  of  chattels  by  will,  J^°  Jg^y^a^sTan 
until  he  or  she  shall  have  attained  the  age  of  eighteen  years.  make  a  will  of 

15.  When  anv  person  shall  bequeath  or  devise  any  share  of  his  ^^'^'^"'^^- 

or  her  estate  to  his  or  her  child  or  children,  without  more  saying,  ehiid  sitiall  vest 

or  to  such  child  or  children,  his,  her  or  their  heirs,  executors,  ad- ?"  his  children 

ministrators  or  assigns,  and  such  child  or  children  shall  have  died  the  testator. 

in  the  life  time  of  such  testator  or  testatrix,  in  every  such  case  the 

said  legacy,  devise  or  bequest  shall  take  efiect  and  vest  a  title  to 

the  property  or  share  of  estate,  described   and  mentioned  in  the 

same,  in  the  issue  of  such  child  or   children,  if  any,   in   the  same 

manner  and   to  the   same  extent,  as  it  would   have  vested   it   in 

such  child  or  children  had  he,  she  or  they  been  in  full  life  at  the 

death  of  the  testator,  and  taking  effect  of  such  will. 

16.  When  any  child  or  children  shall  be  born  after  the  rnaking  ^f|.g|.''^'"[^g  ^°™ 
of  his,  her  or  their  parent's  will,  and  such  parent  shall  die  without  making  of  their 
having   made  provision  for  said  child  or   children,  such  child  or  J^j[^"  ^^j^^J^  ^^j. 
children  may,  at  any  time   within  two  years  after   the  probate  of  a  provision. 
said  will,  by  his,  her  or  their  next  friend  or  guardian,  prefer  a  pe- 
tition to  the  superior  court  or  court  of  pleas  and  quarter  sessions 

of  the  county  in  which  he,  she  or  they  reside,  setting  forth  these 
facts  and  praying  a  provision  under  this  act,  to  which  petition  the 
executor  of  the  testator  or  the  administrator  with  the  will  annexed, 
as  the  case  may  be,  and  the  devisees  of  said  testator  and  also  his 
heirs,  if  a  part  of  the  testator's  land  be  undevised,  shall  be  parties, 
and  copies  of  the  petition  and  subpoenas  shall  be  served  in  the 
manner  by  law  directed  in  other  cases  of  petition. 

17.  On  such  petition  preferred  as  aforesaid,  it  shall  and  may  be  Court  to  de- 

i  ^,.,  1,  ',  ,  •'  cree  a  share  of 

lawful  lor  the   court  to  adjudge  and  decree,   that  the  executor  or  the  personal 
administrator  as  aforesaid  shall  pay  and  deliver   over  to  the  peti-  ^^^?-^^'  ^"'^  ^^P' 
tioner  or  petitioners  such  portion  of  the  personal  estate  of  his,  her  sioners  to  allot 
or  their  parent,  as  the  petitioner   or   petitioners   would  have  been  ^^^1"^'"'^  °^'^''^ 
entitled  to,  had' the  said  parent  died  intestate,  and  also  to  appoint 
five    disinterested  commissioners,   who,  or   a  majority  of   whom, 
with  a  surveyor,  being  first  sworn  to  do  equal  and  impartial  justice, 
shall  lay  off  to  the  petitioner  or  petitioners  a  share  of  his  or  their 

14.  ISll,  c.  820. 

15.  1816,  c.  915,  s.  I. 

16.  1803,  C.  740,  s.  1. 

17.  1808,  c.  740,  s.  2. 


624  ,         WILLS    AND    TESTAMENTS.   [ChAP.  CXXII. 

parent's  lands,  in  whatever  county  situate,    equal  in   value  to  the 

share,  which  would  have  descended  to  the  petitioner  or  petitioners, 

had  no  will  been  made,  and  shall  also  return  a  correct  valuation  of 

the  lands  severally  devised,   and  a  statement,   setting  forth  what 

part  in  value  of  the   lands  of  each   devisee  is   taken   away  by  the 

portion  so  allotted  to  the  petitioner  or  petitioners. 

Cornmission-         jg.   If  there    be  any  lands   of  the   testator  not  devised,  these 

making  the "al- lands,  or  SO  much  thereof  as  may  be  sufficient,  shall  always  be  set 

lotmeiit.  apart  for  the  petitioner  or  petitioners,  and  the  commissioners  are 

enjoined  not  to  interfere  with  the  lands  devised  or  any  of  them, 

except  so  far  as  may  be  necessary  to  make  up  the  deficiency  in  the 

petitioner  or  petitioners'  share. 

Legatees  to  19.   The  several  legatees  under  the  will  of  the  testator,  in  order 

contribute        ^q  make  up  the  personal  portion  decreed   by  the   court  to    the 

proportionally.  .  .  "^  .  V  r  •  i       i     n  -i  •         n 

petitioner  or  petitioners  atoresaid,  shall  contribute  proportionally 
to  the  values  of  their  several  legacies. 
What  decree         20.   Upon    the  return  to  the  court  of  the  proceedings  of  the 
make°"onThJ    commissioners,  the  said  court  shall  and  may  adjudge   and  decree 
return  of  the     that  the  petitioners  and  each  of  them  be  seized,  and  thenceforth 
commissioners,  ^^j^  petitioner  shall  be   seized,  in   fee  simple  of  the  share  of  the 
lands,  to  him  or  her  by  them  allotted,  and  the  said  court  shall  and 
may  give  judgment  severally,  in  favor  of  such  of  the  devisees,  of 
whose  lands  more  has  been  taken  away  than  in  proportion   to  the 
respective   values   of  said  lands,  against  such  of  said  devisees,  of 
whose  lands  a  just  proportion  has  not   been  taken  away,  for  such 
sums  as  will  make  the  contribution  on  the  part  of  each  and  every 
of  them  equitable,  and  in  the  ratio  of  the  values  of  the  several  de- 
vises ;  and  the  costs  attending  the  petition  and  proceedings  thereon 
shall  be  within  the  discretion  of  the  court. 
After  a  decree,      21.   The  petitioner  as  aforesaid,  after  such  decree  as  aforesaid, 
to*^  ^r' deemed  shall  be  Considered  and  deemed  in  law  a  legatee  and  devisee  as  to 
legatees  and     hjg  or  her  portion,  shall  and  may  be  styled  as  such  in  all  legal  pro- 
evisees.  ceedings,  and   shall  be  liable  to  all  the  obligations  and  duties  by 

law  imposed  on  such  ;  Provided  alivays^  that  all  judgments  or 
decrees,  bona  fide  obtained  against  the  devisees  and  legatees,  pre- 
viously to  the  preferring  of  any  petition  as  aforesaid,  and  which  in 
law  and  equity  were  binding  upon,  or  ought  to  operate  upon,  the 
lands  and  chattels  devised  or  bequeathed,  shall  be  carried  into  ex- 
ecution and  effect,  as  if  this  act  had  never  been  passed,  and  the 
petitioner  shall  take  his  or  her  portion  as  aforesaid,  completely 
subject  thereunto  :  Jlnd  provided  also,  that  any  suit  instituted, 
either  in  law  or  equity,  against  the  devisees  or  legatees,  previously 
to  such  petition  as  aforesaid,  shall  not  be  abated  or  abatable 
thereby,  nor  by  the  decree  thereon,  but  shall  go  on  as  instituted, 
and  the  judgment  and  decree,  unless  obtained  by  collusion,  be 
carried  into  complete  execution,  but  on  the  filing  of  the  petition 
as  aforesaid,  during  the  pendency  of  such  suit,  the  petitioners  or 

18.  1808,  c.  740,  s.  3. 

19.  1803,  c.  740,  s.  4. 

20.  1S08,  c.  740,  s.  5.  ■  ' 

21.  ISOSjC.  740,  s.  5. 


Chap.  CXXIL]  wills  and  testaments.  625 

any  of  them,  by  his  or  her  next  friend  or  guardian,  may  come  into 
court,  suggest  the  fihng  of  the  petition  and  become  a  defendant  to 
the  said  suit. 

22.  In  case  it  shall  happen  that  no  petition  shall  be  filed,  within  if  no  petition  be 
two  years  as   prescribed  by  this  act,  it  shall  be  the   duty  of  the  after-b^m  child 
executor  or  executrix,  or  administrator  with  the  will  annexed  of  within  two 
the  parent,  before  he  shall  pay  or  deliver  the  legacies  in  said  will  utors 'to^fife" a 
given,  or  before   paying  to  the   next   of  kin   of  the  testator  any  bill  or  petition 

,  residue  undisposed  of  by  said  will,  to  call  upon  the  said  legatees,  °  ^"  "^  ^^  "' 
devisees,  and  next  of  kin,  and  the  said  after-born  child,  either  by 
bill  in  equity  or  petition  in  the  superior  or  county  court,  where 
the  executors,  and  devisees,  and  legatees,  and  next  of  kin,  or  any 
of  them  may  reside,  to  litigate  their  respective  claims  and  shall 
pray  the  court  to  ascertain,  agreeably  to  the  mode  of  proceeding 
prescribed  by  the  preceding  sections,  the  share  to  which  said  child 
shall  be  entitled  under  this  act,  and  to  apportion  the  shares  and 
sums,  which  said  legatees,  devisees,  or  next  of  kin,  shall  severally 
contribute  toward  the  share  to  be  allotted  to  said  child,  and  the 
said  court  shall  adjudge  and  decree  as  by  this  act  is  legal  and 
equitable. 

23.  Incase  said  child  shall  have  no  guardian,  the  said  court JppQ'i^\g^^,j°y^® 
shall  appoint  a  special  guardian  to  defend  the  interests  and  rights  of  the  court  if  the 
the  said  child.  '  '^^^^'  ^^^" 

24.  The   said  petition,  from  the  filing  thereof  in  the   clerk's  petition  to  be  a 
office,  shall  be  a  hen  on   the  real  estate  devised,  in  the  hands  of  jien  on  the 
the  devisees,  for  the  share  of  such  after-born  child,  which  may  be 

decreed  by  the  court  on  the  final  hearing  of  the  case. 

25.  Every  person  seized  of  an  estate  in  lands,  tenements  or  Devise  may  be 
hereditatments  for  the  life  of  another  person,  may  devise  the  said  ^tafe  hefd  for 
estate  by  last  will  and  testament,   executed  with   the  formalities  the  life  of 

ill 

required  for  the  devise  of  real  property  ;  and  should  no  such  de-  g^^jj  g^^g^jg 
vise  be  made,  and  the  said  estate  for  the  life  of  another  shall  come  when  not  de- 
to  the  heir  or  heirs  of  the  tenant  for  life  by  special  occupancy,  the  assets^in^he^ 
same  shall  be  chargeable  in  the  hands  of  such  heir   or  heirs   as  hands  of  the 

,11  .  heir  of  the  ten- 

assets  by  descent.  ant  for  life,  if 

he  take  it  by 

oo    1  '•oo  „    1 1  oo  ^   1  special  occu- 

22.  1523,  c.  1183,  s.  1.  J; 

23.  1823,  c.  1183,  s.  2.  painty. 

24.  1823,  c.  1183,  s.  3. 

25.  1818,  c.  933,  s.  1. 


Note.  —  References  to  Adjudged  Cases. 

Sect.  1.  Rogers  vs.  Briley,  1  Hay.  2.56.  Eelbeck  vs.  Granberry,  2  Hay.  232.  Rhea 
vs.  Norman,  ib.  342.  Winants  vs.  Winants,  1  Murph.  148.  Bateman  vs.  Mariner,  ib. 
175.  Jiggetts  vs.  Manney,  ib.  258.  Harrison  vs.  Burgess,  1  Hawks,  384.  Allison  vs. 
Allison,  4  Hawks,  141.     Galloway  vs.  Yates,  1  Dev.  296. 

Sect.  2.  Brown  vs.  Brown,  2  Murph.  350. 

Sect.  4.  Anon.  2  Hay.  2.  Hodges  vs.  Jasper,  1  Dev.  459.  Sumner  vs.  Roberts,  2 
Dev.  527.     Redmond  vs.  Collins,  4  Dev.  430. 

Sect.  5.  Odom  vs.  Thompson,  2  Hawks,  24.  McNiel  vs.  McNiel,  2  Dev.  393.  Har- 
Tey  vs.  Smith,  1  Dev.  and  Bat.  186. 

Sect.  6.  Hampton  vs.  Garland,  2  Hay   147. 

Sect.  9.  Stanly  i'.s.  Kean,  Tayl.  93. 

Sect.  12.  Howell  vs.  Barden,  3  Dev.  442.     Hester  vs.  Hester,  4  Dev.  228. 

VOL.    I.  79 


626 


WRECKS. 


[Chap,  CXXIII. 


CHAPTER  123. 


TT  R  E  C  K  S  . 


AN  ACT  CONCERNING  WRECKS  AND  WRECKED  PROPERTY. 


Section 


Wreck  districts  laid  off. 

Commissioners  of  wrecks  to  be  ap- 
pointed— Their  bond  and  oath. 

No  officer  of  the  United  States  to  be 
a  commissioner. 

Duty  of  the  commissioners  of  wrecks. 

Commissioners  to  advertise  and  make 
sales — To  render  an  account  of  sales 
— Their  compensation. 

How  sales  to  be  advertised. 

What  to  be  done  when  there  is  a 


Section 

wreck  without  any  person  to  claim. 

8.  Persons   finding  wrecked   property, 

what  to  do 

9.  Punishment    for  stealing  or  embez- 

zling wrecked  property. 

10.  Penalty  on  commissioners  for  abuse 

of  trust. 

1 1 .  Persons  finding  wrecked  property  at 

sea,  what  to  do. 

12.  Compensation     to     commissioners, 

when  no  owner  appears. 


Wreck  dis- 
tricts laid  off. 


1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of  JSTorth 
Carolina,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  the  counties  of  Currituck,  Carteret,  Onslow,  New  Hanover  and 
Brunswick  be,  and  they  are  hereby  divided  into  the  following 
wreck  districts,  to  wit  :  the  county  of  Currituck  into  four  dis- 
tricts, the  first  from  the  Virginia  line  to  Judy's  cove,  the  second 
from  Judy's  cove  to  Caffey's  inlet,  the  third  from  Cafiey's  inlet  to 
the  place  usually  called  the  Sheep  Pen,  the  fourth  from  the  Sheep 
Pen  to  New  inlet  ;  the  county  of  Carteret  into  four  districts,  the 
first  from  the  Hyde  county  line  to  0  or  acock  island,  including  the 
same,  the  second  from  Ocracock  island  to  Cedar  inlet,  the  third 
from  Cedar  inlet  to  Old  Topsail  inlet,  the  fourth  from  Old  Topsail 
inlet  to  the  Onslow  county  line  ;  Onslow  county  into  two  districts, 
the  first  from  Bogue  inlet  to  New  River  inlet,  the  second  from 
New  River  inlet  to  the  New  Hanover  hne  ;  New  Hanover  county 
into  two  districts,  the  first  from  New  Topsail  inlet  to  Masons- 
borough  inlet,  the  second  from  Masonsborough  inlet  to  the  Bruns- 
wick line  ;  Brunswick  county  into  two  districts,  the  first  from  New 
inlet  to  Lockwood's  Folly,  the  second  from  Lockwood's  Folly  to 
the  South  Carolina  line  ;  and  the  county  of  Hyde  shall  constitute 
one  wreck  district. 

Commissioners  ^-  ^^  ^^^^^^  ^^  ^^^^  '^^^y  ^^  the  county  courts,  in  which  said  wreck 
of  wrecks  to  districts  shall  be  located,  to  appoint,  whenever  it  may  be  neces- 
Their'^bond  and  ^^U^  ^  commissioner  of  Wrecks  for  each  district,  who  shall  hold 
oath.  his  office  for  two  years,  and  shall,  at   the  time  of  his  appointment, 

enter  into  bond,  with  good  security,  in  the  sum  of  fifteen  thousand 
dollars,  payable  to  the  State  of  North  Carolina,  and  conditioned  for 


1.  1817,  c.  953.— 1831,  c.  47.— 1818,  c.  975.— 1S34,  c.  28. 

2.  1817,  c.  953.-1833,  c.  17.— 1828,  c.  18.— 1801,  c.  599.-1834,  c.  28.— Amended. 


Chap.  CXXIII.]  wrecks.  627 

the  faithful  performance  of  his  duties  as  commissioner  of  wrecks, 
which  said  bond  shall  be  dejDOsited  in  the  office  of  the  clerk  of  the 
county  court  for  safe  keeping,  and  may  be  sued  upon  by  any  per- 
son aggrieved  by  the  neglect  or  misconduct  of  such  commissioner. 
Before  entering  on  the  duties  of  his  office,  the  commissioner  shall, 
before  the  court  that  appointed  him,  take  the  following  oalh  :  "I, 
A.  B..,'  do  solemnly  swear,  that  I  will  truly  and  faithfully  discharge 
tiie  duties  of  a  commissioner  of  wrecks  for  the  district  of 
in  the  county  of  ,  agreeably  to  law."     And  it  shall  be  the 

duty  of  each  commissioner  to  reside  in  the  district  for  which  he  is 
appointed,  unless  separated  by  navigable  waters,  and  then  at  a 
distance  not  exceeding  three  miles  from  such  district.  Provided 
alivays,  that  the  court  of  pleas  and  quarter  sessions  for  the  county 
of  Hyde  shall  appoint  one  or  more  commissioners  for  the  district 
of  Hyde,  as  they  may  deem  proper,  under  the  rules  and  regula- 
tions herein  prescribed. 

3.  No  person,  who  shall  hold  any  office  or  deputation  under  the  No  officer  of 
United  States,  shall  act  as  a  commissioner  of  wrecks.  st^t^T'^b 

4.  It  shall  be  the   duty   of  the   commissioners  appointed  as  commissioner. 
aforesaid,  on   the   ealiest  intelligence  given,   or  on  application  to  Duty  of  the 
them,  made  by  or  on  behalf  of  any  owner,   supercargo   or   com- ^^"^g^^^°'^^'^^ 
niander   of  any  ship  or  other   vessel,    being   in   danger   of  being 
stranded,  or  being  stranded,  to  command  any  sheriff  or  constable 

nearest  the  coast  where  such  ship  or  other  vessel  shall  be  in  dan- 
ger, to  summon  as  many  men,  as  shall  be  thought  necessary,  to 
the  assistance  of  such  ship  or  vessel,  who  are  to  be  under  the  di- 
rection of  the  masters  or  owners  ;  and  the  commissioners  and  all 
others,  who  shall  assist  in  preserving  any  ship  or  other  vessel  in 
distress,  or  their  cargoes,  shall,  within  forty  days,  be  paid  a  reason- 
able reward  by  the  commander  or  owner  of  the  ship  or  vessel  in 
distress,  or  by  the  merchant,  whose  vessel  or  goods  shall  be  saved, 
and  in  default  thereof,  the  vessel  or  goods  shall  remain  in  the  cus- 
tody of  the  commissioners  or  salvers  until  all  reasonable  charges 
be  paid,  or  security  given  for  that  purpose  to  the  satisfaction  of  the 
parties  ;  and  in  case  the  parties  shall  disagree,  touching  the  amount 
of  the  reward  to  be  paid  the  persons  employed,  it  shall  be  the  duty 
of  the  commander  of  such  vessel  saved,  or  the  owner  of  the  goods, 
or  merchant  interested,  or  their  agent,  to  choose  one  indifferent 
person,  and  also  of  the  commissioners  or  salvers  to  nominate  one 
other  indifferent  person,  who  shall  adjust  and  ascertain  the  same, 
and  if  such  adjustment  shall  be  unsatisfactory  to  either  party,  he 
shall  declare  his  dissent,  and  thereupon  the  said  award  shall  be  re- 
turned to  the  next  superior  court  of  the  county,  where  the  same 
was  made,  and  it  shall  be  competent  for  said  court  to  cause  the 
same  to  be  re-examined,  and  to  pronounce  such  judgment  thereon, 
as  they  may  deem  just  ;  and  in  the  meantime,  it  shall  be  the  duty 
of  the  commissioner  of  wrecks  to  retain  in  his  hands,  in  order  to 
satisfy  said  judgment,  the  amount  awarded  by  the  referees  or 
umpire. 

3.  1805,  c.  639,  s.  2. 

4.  1301,  c.  599,  s.  1.— 1827,  c.  21. 


628  WRECKS.  [Chap.  CXXIII. 

Commissioners  5,  In  future,  the  Commissioners  of  wrecks  shall  be  deemed  the 
make  sales.^"  proper  officers  to  advertise  and  expose  to  sale,  at  public  auction, 
To  render  an  any  cargo  or  cargoes,  which  may  be  stranded  or  cast  on  shore  in 
saies!°'^°  their  respective  districts,  unless  the  captain,  owner,  merchant  or 
Their  compen-  consignee  shall  choose  to  superintend  such  sale  himself,  or  to  re- 
sation.  move  the  property  without  selling  it,  and  each  commissioner  shall 

provide  himself  with  books  sufficient,  and   shall  record  in  them  all 
such  sales  by  him  made,  and  shall  deliver  to  the  captain,  owner  or 
merchant,  or  other  person  concerned  a  true  account  of  any  such 
sale  or  sales  which  shall  have  been   made  ;    and  the  said  commis- 
missioner  shall  receive  for  such  service  two  and  a  half  per  cent,  on 
the  amount  of  all  such  sales. 
How  sales  to        6.   When  any  commissioner  of  wrecks  shall  undertake  to  sell 
be  advertised,   ^^j  wrecked  or  Stranded  property,  it  shall  be  his  duty  to  advertise 
the   sale   thereof,  not  less  than  ten  nor  exceeding  twenty  days,  at 
two  or  more  public  places  in  his  county,  and  should  said  property 
be  adjudged  above  the  value  of  one  thousand  dollars,  he  shall  ad 
vertise  the  same  in  some  newspaper  (if  any)  and  one  other  public 
place  of  the  towns  in  the  federal  district  of  which  his  county  forms 
a  part. 
What  to  be  7.   If  any  vessel  or  other  property  be  cast  ashore,  within   the 

there Is^a"^       limits  of  any  of  the  aforesaid  districts,  without  any  person  present 
wreck  without  to  claim  the  same  as  owner,  the  commissioner  of  such  district  shall 
clalm"^™ '°    take  possession  thereof,  and  cause  a  true  description  of  the  marks, 
numbers  and  kinds  of  such  goods  to  be  advertised  in  one  or  more 
public  gazettes,  for  the  space  of  eight  weeks,  and  if  no  person  shall 
claim  the  same  within  twelve  months,  pubhc  sale   shall  be  made 
thereof,  but  if  perishable,  the  goods  shall  be  sold  after  being  ad- 
vertised in  two  or  more  public  places,  not  less   than  ten  nor  more 
than  twenty  days,   as   circumstances  may  require  ;  and   after  all 
reasonable   charges  deducted,  the  residue  of  the  money,  with  an 
account  of  the  whole,  shall  be  transmitted  to  the  clerk's  office  of 
the  court  of  the   county,  where  such  vessel  may  be   stranded   or 
goods  saved,  and  the  said  clerk  shall   make  a  record  and  keep  an 
account  of  the  same,  for  the  benefit  of  the  owner,  who  upon  proof 
of  his  property  to  the   satisfaction  of  the  commissioner  together 
with  two  justices,  shall  by  their  warrant  or  order  receive  the  same, 
paying  to  the  clerk  of  such  court  one  per  cent,  for  his  trouble  ; 
and  should  no  person  claim  the  same   within   a  year  and  one  day 
from  the  date  of  the  advertisement,  it  shall  then  and  in  that  case  be 
the  duty  of  the  clerk,  holding  such  money,  to   transmit  the  same, 
after  deducting  one  per  cent,  for  his  trouble,  to  the  public  treasurer 
of  the  State  for  the  use  of  the  State. 
Persons  finding      8.   When  any  person  or  persons  shall  find  any  stranded  property 
^trwhat  uf'  on  or  near   the  sea  shore,  and  no   owner  appearing  to  claim  the 
do.  same,  he  or  they  shall,  as  soon  as  possible  after  saving  the  same, 

give  information  to  the  nearest  commissioner  thereof,  and  to  him 

5.  1805,  c.  689,  s.  1.   • 

6.  1817,  c.  953,  s.  2. 

7.  1801,  c.  599,  s.  4. 

8.  1801,  c.  599,  s.  C. 


Chap.  CXXIII.]  wrecks.  629 

deliver  the  same,  for  which  he  shall  be  entitled  to  his  reasonable 
salvage  to  be  ascertained  in  manner  before  directed  ;  and  should 
any  person,  finding  stranded  goods  or  other  property  as  aforesaid, 
conceal  the  same,  or  convert  the  same  to  his  own  use,  or  fail  within 
ten  days  to  give  information  thereof  to  the  nearest  commissioner 
of  wrecks  in  his  or  their  county,  on  proof  thereof  had,  he  or  they 
shall  pay  to  the  commissioner,  discovering  the  same,  double  the 
value  of  such  property,  to  be  recovered  before  any  competent 
jurisdiction  having  cognizance  thereof. 

9.  If  any  person  shall  embezzle  or  steal  any  stranded  property.  Punishment  for 
or  conceal  the  same,  knowing  it  to  have  been  stolen,  such  person  bezzliifg  wreck- 
er persons,  upon   due  proof  thereof,  shall   forfeit   and  pay  to  the  ed  property. 
owner  or  commissioner   double  the  value  of  the   stolen  goods  so 

proved  against  him  or  them,  or  found  in  his  or  her  possession,  to 
be  recovered  before  any  justice  of  the  peace  or  other  competent 
jurisdiction  ;  and  the  person  or  persons,  so  feloniously  taking  or 
concealing  the  same,  shall  moreover  be  deemed  guilty  of  larceny, 
and  shall  be  indicted  under  this  act  and  suffer  as  in  cases  of  larceny 
at  common  law. 

10.  Should  any  commissioner,  appointed  as  aforesaid,    either  P«^"^lty  on 
by  fraud  or  wilful  neglect,  abuse  the  trust  so  reposed  in  him,  he  for  abuse  of 
shall,  upon  conviction  thereof,  forfeit  and  pay  treble  damages  to  trust. 

the  party  aggrieved,  to  be  recovered,  with  costs,  by  action  on  the 
case  in  any  court  of  record,  and  shall  thereafter  be  incapable  of 
acting  as  a  commissioner  ;  and  any  sheriff  or  constable  or  other 
persons,  summoned  as  aforesaid,  refusing  or  neglecting  to  give  the 
assistance  required  for  the  saving  any  vessel  or  her  cargo,  shall 
forfeit  and  pay  the  sum  of  four  dollars  to  be  recovered  by  the 
commissioner,  ordering  such  duty,  before  any  justice  of  the  peace 
in  the  county,  where  such  duty  was  required. 

11.  Whenever  hereafter  any  property  shall  be  found  on  board  Persons  finding 
any  vessel  at  sea,  which  has  been  wrecked  or  abandoned  by  the^^y'^j^j^gg^^"'^" 
crew,  which  property  is  afterwards  brought  into  this  State,  it  shall  what  to  do. 
be  the  duty  of  the  person,  in  whose  possession  the  same   may  be, 

to  deliver  it  to  the  wreck  master  of  the  district,  into  which  said 
property  may  be  brought,  to  be  disposed  of  as  stranded  property 
is  now  directed  to  be  ;  and  any  person,  who  shall  hereafter  em- 
bezzle or  conceal  any  such  property,  shall  be  liable  to  indictment, 
and  upon  conviction  shall  be  whipped  at  the  discretion  of  the  court, 
not  exceeding  thirtynine  lashes. 

12.  The   commissioner    of  wrecks,  when  there   shall  be  any  [^°™mmis-^°" 
stranded  or  wrecked    property  cast  ashore,  or  any  such  property  sioners  when 
shall  come  into  his  hands,  and  there  shall  appear  no  owner  to  claim  ""a^^"'^'^  ^^' 
the  same,  shall  be  allowed,  in  full   for  performing  the   duties   and 
services  enjoined  by  this  act  in  such  cases,  the  sum  of  five  per 

cent,  on  the  value  or  sales  of  such  goods. 

9.  1801,  c.  599,  s.  6. 

10.  1801,  c.  599,  s.  7. 

U.  1828,  c.  18,  s.  3. 

12.  1801,  c.  599,  s.  8. 


INDEX. 


ABATEMENT. 

Suits  not  to  abate  by  the  death  of  parties,  but  may  be  proceeded  on  by  or  against  heirs,  executors  or 
administrators,  55. 
not  to  abate  when  a  term  intervenes  between  the  death  of  a  party  and  the  qualification  of  his 

executors  or  administrators,  55. 
nor  while  a  contest  is  pending  for  administration,  or  for  probate  of  a  will,  56. 
nor  by  the  marriage  of  a  feme  sole  plaintiff  or  defendant,  56. 

Husband  made  party  plaintiff  to  give  new  security  for  the  costs,  56. 

Suit  not  to  abate  by  death  of  an  executor  or  administrator,  but  may  be  revived  by  or  against  the  ad- 
ministrator de  bonis  non  or  the  executor  of  the  executor,  56. 

Action  of  ejectment,  on  the  death  of  defendant,  may  be  revived  against  his  heirs  or  devisees,  56. 

When  the  heir  or  devisee  a  minor,  court  to  appoint  a  guardian,  56. 

How  heirs  or  devisees  out  of  the  State  may  be  made  parties,  57. 

Actions  of  detinue,  trover,  or  trespass  for  injuries  to  property,  real  or  personal,  not  to  abate  by 
death  of  either  party,  57. 

Appeals  not  to  abate  by  death  of  either  party,  57. 

Attachment  issued  without  bond  and  affidavit  filed  to  be  abated  on  plea  of  defendant,  71 . 

No  attachment  to  be  abated  for  want  of  form,  72. 

Justice's  process  not  to  be  abated  for  want  of  form,  353. 
ACCESSORIES. 

Benefit  of  clergy  taken  away  from  accessories  before  the  fact  to  certain  crimes,  203. 

Accessories  to  felonies,  how  punishable  in  certain  cases,  203. 
ADJUTANT  GENERAL.     See  Militia,  Public  Arms. 

Salary  of  adjutant  general,  what,  and  when  to  be  paid,  549. 

Adjutant  general  may  have  blanks,  &c.  printed  for  his  ofiice  at  the  expense  of  the  State,  491. 
ADMINISTRATORS.     See  Executors  and  Administrators. 
ADVERTISEMENT, 

Advertisements,  where  to  be  made  in  certain  cases,  492. 
ALIMONY.     See  Divorce  and  Alimony. 
AMENDMENT. 

General  power  of  the  courts  to  amend  before  judgment,  58. 

Adverse  party  to  answer  amendments  in  substance,  58. 

Formal  defects  may  be  amended  after  judgment,  58. 

And  in  returns  of  officers  or  subordinate  tribunals,  58. 

Certain  defects  to  be  disregarded  after  verdict,  58. 

Such  defects  to  be  supplied  and  amended,  59. 

Amendments  not  to  be  made  without  an  order  of  court,  59. 

Formal  defects  to  be  disregarded  on  general  demurrer,  59. 

Such  defects  to  be  amended,  59. 

These  provisions  extend  to  all  actions  and  proceedings  in  any  court  of  law,  60,  187. 

No  attachment  to  be  abated  for  want  of  form,  72 

Justice's  process  not  to  be  set  aside  for  want  of  form,  358. 


632 


INDEX. 


APPEALS  AND  PROCEEDINGS  IN  THE  NATURE   OF  APPEALS. 

Appeal  allowed  from  any  sentence,  judgment  or  decree  of  the  county  to  the  superior  court,  61. 
from  orders  of  the  county  court  appointing  or  removing  a  guardian,  61. 
on  the  probate  of  wills  or  granting  letters  of  administration,  61,  621. 
on  the  trial  of  caveats,  62. 

in  cases  of  petition  for  damages  caused  by  the  erection  of  a  public  mill,  62. 
or  for  laying  out  roads  or  settling  ferries,  62,  538. 
or  for  laying  out  cart  ways  or  erecting  gates,  &c.,  547. 
may  be  taken  by  the  prosecuting  attorney  upon  an  issue  that  the  defendant  is  the  father  of 

of  a  bastard  child,  91. 
allowed  incases  of  prosecution  or  indictment  for  trading  with  slaves,  211. 
from  judgments  on  forfeited  recognizances,  221. 

from  the  finding  on  an  issue  of  fraud,  made  under  the  insolvent  debtors'  act,  326. 
In  such  case  any  one  or  more  of  the  creditors  may  appeal  without  the  others,  323. 
Appeals  allowed  in  cases  of  slaves  charged  with  trading  with  each  other,  and  free  negroes  charged 

with  trading  with  slaves,  591. 
Appellant  to  enter  into  bond  with  two  securities  for  performing  the  judgment  of  the  superior  court, 

if  against  him,  61. 
Duty  of  the  clerk  of  the  county  court  to  file  a  transcript  in  the  superior  court,  62. 
Appeal  to  stand  for  trial  at  first  term,  62. 

Appellant  may  procure  a  transcript  and  file  it  in  the  superior  court,  62. 

How  appellant  may  proceed  when  there  is  a  vacancy  in  the  office  of  the  superior  court  clerk,  62. 
If  appellant  fails  to  file  a  transcript,  appellee  may  proceed  and  have  the  judgment  affirmed  with 

double  costs  to  be  paid  by  the  appellant,  63. 
On  an  appeal  the  clerk  of  the  county  court  may  issue  subposnas  for  witnesses,  63. 
Defendants  in  actions  of  debt,  covenant  or  assumpsit,  appealing  for  delay,  to  pay  four  per  cent,  ad- 
ditional interest,  63. 
Plaintilf  appealing  and  not  recovering  a  greater  sum  in  the  superior  court  to  have  no  costs,  but  may 

be  ordered  to  pay  the  same,  63. 
Bonds  for  appeal  and  for  prosecution  of  suit  to  be  sent  up  as  part  of  the  record,  and  judgment  may 

be  entered  on  them,  63. 
No  appeal  to  be  dismissed  for  want  of  form,  63. 

Clerk  of  the  superior  court  shall,  if  required,  give  a  receipt  for  the  transcript,  63. 
Cause  to  be  placed  on  the  trial  docket,  if  there  are  ten  days  between  the  last  day  of  the  county  court 

and  the  first  day  of  the  next  superior  court,  64. 
If  not,  cause  to  be  entered  for  trial  at  the  next  term,  64. 
After  transcript  filed,  clerk  of  the  superior  court  to  issue  subpoenas,  64. 
Penalty  on  clerks  for  failing  to  perform  their  duty  in  regard  to  appeals,  64. 
Persons  obtaining  writs  of  recordari  or  false  judgment  to  give  security  as  in  cases  of  aj)peal,  64. 
Clerks  of  county  courts  to  take  security  from  persons  obtaining  certioraris,  64. 
Writs  of  error  may  be  granted  by  superior  courts,  64. 
Party  praying  such  writ  to  assign  error,  and  give  bond,  and  give  ten  days'  notice  to  opposite  j)arly, 

64,  65. 
What  judgment  may  be  granted  by  the  superior  court  on  such  writ,  64. 
No  writ  of  error  to  be  allowed  but  within  five  years  after  judgment,  65. 
Proviso  for  persons  under  disabilities,  65. 

No  writ  of  error  for  matter  of  fact  to  be  allowed  but  within  five  years  after  judgment,  65. 
Appeals  from  the  superior  to  the  supreme  court  allowed  on  givingbond,  65, 185. 
Supreme  court  to  render  judgment  upon  an  inspection  of  the  whole  record,  66,  185. 
Judges  of  the  superior  courts  may  allow  appeals  from  interlocutory  judgments,  65. 
In  such  cases  so  much  only  of  the  record  as  they  may  think  necessary  to  be  sent  up,  65. 
The  whole  cause  not  to  be  removed  to  the  supreme  court,  66. 
In  appeal  to  the  supreme  court,  appellant  must  file  a  transcript  within  the  first  seven  days  of  the 

term,  66. 
Supreme  court  may  render  judgment  against  securities  for  an  appeal,  66. 

How  the  appellee  may  proceed  when  the  appellant  fails  to  file  the  appesd  witliin  proper  time,  66. 
How  judgment  for  costs  to  be  rendered,  66. 
Appeals  to  the  supreme  court  allowed  in  equity  cases,  66. 
Appeals  not  to  abate  by  the  death  of  either  party,  57. 


INDEX. 


633 


APPEALS  AND  PROCEEDINGS  IN  THE  NATURE  OF   APPEALS,     {Continued.) 

Appeals  allowed  from  the  superior  to  the  supreme  court,  in  proceedings  against  corporations,  120. 
Upon  an  appeal  by  a  defendant  from  a  justice's  judgment,  or  a  recordari,  obtained  by  a  defendant, 

court  may  compel  plaintifl'to  give  security,  &c.,  169. 
Appeals  from  a  justice's  judgment  to  be  tried  the  first  term  of  the  county  court,  170. 
Upon  such  appeals  the  party  cast,  shall  pay  all  costs,  provided,  that  if  a  plaintiff  appeal  from  a 

judgment   in  his   favor,  it  shall  be  at  his  costs,  unless   sufficient  cause  for  such  appeal  is 

shewn,  170. 
Appeals  from  the  county  to  the  superior  court,  how  to  be  tried,  170. 
Appeals  allowed  to  the  supreme  court  in  divorce  cases,  242. 
Appeals  maybe  taken  to  the  county  court  in  proceedings  to  assess  damages  for  billing  stock, 

&c.,  2S4. 
Either  party  may  appeal  from  a  justice's  judgment,  358. 
How  security  for  such  appeals  to  be  given  and  proceeded  against,  359. 

Justice  to  return  appeals  to  court,  on  or  before  the  second  day  of  the  term,  and  to  summon  wit- 
nesses, 359. 
In  an  attachment  before  a  justice,  an  interpleader  may  appeal  to  the  county  court,  77. 
How,  and  in  what  time,  a  party  desirous  to  appeal,  and  is  unprovided  with  sureties,  or  was  unable 

to  attend  the  trial  from  sickness,  &c.,  shall  proceed  to  obtain  an  appeal,  359. 
Duty  of  the  justice  and  constable  upon  such  appeal  being  granted,  359. 
Execution  may  issue  before  the  appeal  is  obtained,  but  upon  security  given,  the  officer  must  return 

the  execution  to  the  justice,  360. 
Upon  appeals  to  the  superior  court  in  petitions  for  damages  caused  by  the  erection  of  mills,  the  trial 

shall  be  at  bar,  424. 
In  such  appeal,  if  the  plaintiff  recovers  no  higher  damages,  he  shall  pay  the  costs  of  the  appeal,  424. 
Appeal  allowed  from  the  judgment  of  a  justice  or  commissioner  of  navigation  in  disputes  between 

masters  of  vessels  and  pilots,  463. 
Appeal  allowed  from  a  court  of  oyer  and  terminer  for  the  trial  of  slaves  in  certain  cases,  to  the 

supreme  court,  584. 
APPRENTICES. 

County  courts  to  bind  out  orphan  children,  67. 

What  children  to  be  bound  out,  67. 

To  what  persons,  and  for  what  time  to  be  bound,  67. 

Duty  of  master  of  such  apprentices,  68. 

In  case  of  ill  usage,  court  may  remove  such  apprentice  and  bind  him  to  another,  63. 

The  binding  to  apprenticeship  to  be  by  indenture,  68. 

Remedy  for  the  apprentice  upon  the  deed  of  indenture,  68. 

In  what  cases  the  county  courts  may  bind  out  free  children  of  color,  68,  589. 

To  whom  free  children  of  color  are  to  be  bound,  for  what  time,  and  on  what  terms,  68. 

Master  to  give  bond  not  to  remove  them  out  of  the  county  and  to  produce  them  at  the  expiration  of 

their  term,  68,  533. 
On  failure,  the  county  solicitor  to  sue  on  the  bond,  69. 
Proviso  as  to  seafaring  persons,  69. 
Remedy  for  master  against  apprentices  absenting  themselves  after  arriving  at  the  age  of  eighteen, 

and  before  their  term  expires,  69. 
Penalty  for  harboring,  &c.  an  orphan  child,  without  leave  of  a  justice,  69. 
Such  child  to  be  brought  to  the  next  county  court  to  be  bound  out,  69. 
ARSENAL.     See  Public  Anns. 
ATTACHMENTS. 

On  complaint  made  on  oath  to  a  judge  or  justice  of  the  peace,  attachment  may  issue  against  the 

property  of  a  debtor  absconding  or  concealing  himself,  70. 
Attachment  to  be  returned  to  county  or  superior  court.  71. 
May  also  issue  in  favor  of  a  citizen  of  this  State  against  a  non-resident  debtor,  under  the  same  rules 

71. 
Plaintiff  to  give  bond,  which,  with  the  affidavit,  must  be  returned  to  court,  71. 

Attachment  issued  without  bond  and  affidavit  taken  and  returned,  to  be  abated,  on  plea  of  the  de- 
fendant, 71. 
Form  of  the  attachment,  71. 
Form  of  the  bond,  72. 

VOL.   I.  80 


634  INDEX. 

ATTACHMENTS,  {Continued.) 

Attachment  not  to  be  abated  for  want  of  form,  72. 
Proceedings  on  attachments,  72. 

Defendant  or  his  attorney  may  replevy  property  attached  by  giving  a  hail  bond,  72. 
If  defendant  does  not  replevy  within  sixty  days  after  attachment  levied,  and  the  property  be  perish- 
able, sheriff  may  sell  and  deposit  the  money  in  court,  73. 
Sheriff  to  summon  as  garnishees  those  supposed  to  be  indebted  to  or  to  have  any  effects  of  the  ab 

sconding  debtor,  73. 
Garnishee  to  answer  on  oath,  73. 
Judgment  to  be  entered  and  execution  awarded  against  garnishee  for  what  he  admits  himself  to  owe, 

and  for  effects  admitted  to  be  in  his  hands,  73. 
If  garnishee  fail  to  appear  and  answer  on  oath,  conditional  judgment  to  be  entered  against  him  and 

sci.Ja.  to  issue,  73. 
If  he  fail,  on  return  of  sci.  fa.  executed,  then  final  judgment  to  be  entered  against  him  for  the  whole 

amount  of  plantiff's  judgment,  73. 
If  any  of  the  defendant's  estate  appears  to  be  in  the  hands  of  other  persons,  court  may  grant  a  judi- 
cial attachment  against  such  estate,  73. 
When  a  garnishee  denies  that  he  owes  to  or  has  any  property  of  defendant,  an  issue  to  be  made  up 

and  tried,  74. 
Any  person  claiming  property  levied  on  by  attachment  may  interplead — Proceedings  thereupon,  74. 
Specific  articles  confessed  by  a  garnishee  shall  be  valued  by  a  jury  and  judgment  given  for  the 

value,  74.  ■  ' 

In  what  cases  garnishee  may  exonerate  himself  by  delivery  of  the  articles,  74. 
When  money  or  specific  articles  are  due  or  deliverable  at  a  future  time,  conditional  judgment  to  he 

entered,  75. 
Fmal  judgment  not  to  be  entered  without  sci.  fa.,  75. 

Persons  entering  themselves  as  special  bail  on  replevying  property,  how  far  bound,  75. 
In  attachments  against  non-residents,  advertisement  to  be  made  of  not  less  than  six  weeks,  75. 
No  final  judgment  to  be  entered  until  such  advertisement  has  been  made,  75. 
Costs  of  advertisement  to  be  taxed  by  the  clerk,  75. 
Where  judicial  process  may  issue,  75. 

Attachments  in  cases  cognizable  by  a  justice  of  the  peace— Proceedings  thereon,  75. 
Oath  to  be  taken,  bond  to  be  given  and  attachment  to  issue  returnable  before  a  justice  within  thirty 

days,  75. 
Proceedings  before  the  justice  simimary  as  in  case  of  warrants,  75. 
Garnishee  to  be  summoned,  to  answer  on  oath,  and  judgment  be  given  against  him  for  the  debts  or 

effects  he  may  admit,  76. 
If  garnishee  fail  to  appear  and  answer,  justice  to  issue  a  notice  to  him,  and  if  he  again  fail  on  return 

of  such  notice  executed,  judgment  to  be  given  against  him  for  plaintiffs'  demand  and  costs,  77. 
In  case  of  interpleader,  the  party  interpleading  may  appeal  to  the  county  court,  where  the  right  shall 

be  tried  by  a  jury,  77. 
If  garnishee  denies  that  he  is  indebted  to  or  has  effects  of  the  defendant  and  plaintiff  suggests  the 

contrary  on  oath,  or  if  the  justice  cannot  give  judgment  on  the  garnishment,  the  attachment  and 

other  papers  to  be  returned  to  the  county  court  there  to  be  tried,  77. 
Property  attached  may  be  replevied  by  giving  bail  bond,  77. 
If  property  attached  be  found  to  be  perishable,  by  three  freeholders  summoned  by  the  officer  and 

acting  on  oath,  and  be  not  replevied  within  thirty  days,  to  be  sold  by  the  officer  and  money  re- 
tained to  answer  the  judgment,  77. 
Specific  articles  confessed  by  a  garnishee  to  be  valued  by  three  freeholders,  appointed  and  sworn  by 

the  justice,  78. 
Judgment  to  be  given  for  their  value,  78. 

How  garnishee  may  exonerate  himself  by  the  delivery  of  specific  articles,  73. 
Garnishee  entitled  to  stay  of  execution,  78. 

Attachment  to  be  stayed  thirty  days,  unless  property  replevied,  78. 
Special  bail  how  far  liable,  78. 

When  justice  to  direct  advertisement  to  be  made,  and  how  long,  79. 
When  real  estate  attached  and  condemned  by  a  justice,  proceedings  must  be  returned  to  the  county 

court,  79. 
If  goods  be  taken  on  a  judicial  attachment  and  be  not  replevied,  they  may  be  sold  on  final  judg 

ment,  155. 


INDEX.  635 

ATTORNEY  GENERAL  AND  SOLICITORS. 

An  attorney  general  to  be  appointed  by  the  General  Assembly,  to  be  commissioned  by  the  governor, 

and  to  hold  his  office  for  four  years,  24. 
Attorney  general  shall  attend  to  all  business  of  the  State  in  the  supreme  court,  80. 
Shall  attend  and  prosecute  in  the  third  circuit,  80. 
Six  solicitors  to  be  appointed  by  the  General  Assembly,  to  hold  office  for  four  years  and  prosecute  in 

the  circuits  for  which  appointed,  80. 
In  case  of  vacancy  in  the  office  of  solicitor  a  temporary  appointment  to  be  made  by  the  judge  who  is 

next  to  ride  the  circuit,  SO. 
County  solicitors  to  be  appointed  by  the  county  courts,  to  hold  office  for  four  years,  and  to  prosecute 

in  the  county  court,  by  which  he  is  appointed,  80. 
County  solicitor  required  to  sue  on  bonds  given  by  masters  of  colored  apprentices,  in  case  of  breach, 

69. 
Duty  of  attorney  general  and  solicitors  as  to  trustees  of  charities,  102,  121. 

Attorney  general  may  file  an  information  in  the  supreme  or  superior  court  of  law  against  any  cor- 
poration, to  ascertain  whether  it  has  forfeited  its  charter,  120. 
May  also  file  a  bill  to  restrain  corporations  or  individuals,  from  exercising  corporate  franchises  not 

granted,  l2l. 
Form  of  the  official  oaths  of  attorney  general  and  solicitors,  434,  436. 
Salaries  of  the  attorney  general  and  solicitors,  549. 
Their  fees,  551. 
Fees  of  county  solicitors,  552. 
ATTORNEYS  AT  LAW. 

To  be  licensed  by  the  judges  of  the  supreme  court,  81. 
When  persons  coming  from  other  states  to  be  licensed,  St. 
Oaths  to  be  taken — Form  of  such  oaths,  81,  438. 
To  pay  a  tax.  81. 

To  pay  the  costs  when  a  suit  is  dismissed  for  want  of  a  declaration,  81. 
Guilty  of  neglect  or  fraud  to  pay  double  damages,  81. 

Penalty  on  attorneys  for  taking  greater  fees  than  those  allowed  by  law,  82. 
No  justice  of  the  peace  to  practise  as  attorney  in  the  county  court  of  his  county,  82,  354. 
Attorney,  accepting  the  appointment  of  justice,  must  resign  his  claim  to  practise  in  such  court,  82. 
Tax  on  attorneys'  licenses — To  whom  to  be  paid,  124. 
Not  more  than  one  attorney  to  speak  in  any  cause,  158. 

Every  attorney  appearing  in  any  cause,  to  file  a  powc-  of  attorney,  if  required,  158. 
When  necessary  for  the  attorney  to  retain  the  power,  what  to  be  done,  158. 
No  attorney  to  enter  an  appearance,  until  the  power  is  produced,  if  required,  158. 
Fees  of  attorneys  at  law,  552. 

No  practising  attorney  shall  be  compelled  to  act  as  sherifi",  568. 
AUCTIONS  AND  AUCTIONEERS. 

A  tax  of  two  and  one  half  per  centum  to  be  paid  on  goods  sold  at  auction,  83. 

What  sales  exempt  from  the  tax,  83. 

What  articles  exempt  from  the  tax,  83. 

Tax  to  be  paid  on  articles  sold  by  auctioneers  at  private  sale  in  certain  cases,  83. 

Auctioneers  to  be  appointed  annually  by  the  county  court  and  to  give  bond,  S3. 

to  render  quarterly  returns  to  the  clerk  of  the  county  court  and  to  pay  the  public 

treasurer  the  amount  of  duties  received,  84. 
to  retain  a  commission  of  five  per  cent,  on  such  amount,  84. 
Commissioners  of  certain  towns  to  appoint  auctioneers  and  to  supply  vacancies,  84. 
One  per  rent,  out  of  the  two  and  a  half  per  cent,  to  be  paid  by  the  auctioneers  to  such  commissioners, 

85. 
Clerks  of  the  county  courts  to  make  annual  returns  to  the  comptroller,  of  auction  duties,  and  of  the 

names  of  the  auctioneers  and  their  securities,  85. 
Duty  of  the  comptroller  and  of  the  treasurer,  85. 
Penalty  on  auctioneers  and  clerks  for  failing  to  make  returns,  85. 
Penalty  for  acting  as  auctioneers  without  appointment,  85. 
Proviso  as  to  sales  and  articles  exempted  from  duty,  85. 
Auctioneers  may  charge  their  employers  two  and  a  half  per  cent.,  86. 


636  INDEX. 

BAIL. 

In  civil  cases  how  bail  to  be  taken  and  returned,  86. 
When  the  sheriff  shall  be  special  bail,  86. 

All  bail  bonds  must  be  payable  to  the  sheriff,  and  conditioned  for  the  prisoner's  appearing,  and  sure- 
ties discharging  themselves  therefrom  as  special  bail,  569. 
Bail  bond  to  be  assigned  to  the  plaintiff,  87. 
If  not  assigned,  sheriff  to  be  special  bail,  87. 
No  judgment  to  be  entered  against  the  bail  until  a  ca.  sa.  has  been  issued  against  principal  to  his. 

proper  county,  and  returned  "  not  to  be  found''  and  sci.fa.  executed  on  bail,  87. 
Bail  may,  before  final  judgment,  arrest  and  surrender  the  principal,  87. 
Person  surrendered  may  give  other  bail,  87. 
Issue  by  the  bail  to  be  tried  the  first  term,  88. 
Non  est  factum  Xo  be  pleaded  only  on  oath,  88. 

When  principal  is  imprisoned  on  other  process  he  may  be  retained,  88. 
Costs  to  be  paid  by  the  bail  in  certain  cases,  88. 

Bail,  on  replevying  property  attached,  to  be  liable  only  for  its  value,  75,  78. 
On  process  from  a  court  of  equity,  sheriff  shall  be  liable   as  special  bail  for  taking  an  insufficicHt 

bond  or  for  failing  to  take  any  bond,  177. 
On  warrants  from  a  justice  of  the  peace,  the  officer  must  take  bail  if  required,  354. 
A  defendant  arrested  on  a  warrant  from  a  justice  and  refusing  to  give  bail,  to  be  committed,  355. 
Regulations  respecting  bail  in  such  cases,  355. 
Bail  may  arrest  principal  in  order  to  surrender  him,  355. 
Time  within  which  a  scire  facias  against  bail  on  any  judgment  or  decree  now  existing  maybe  sued 

out,  375. 
Time  within  which  a  scire  facias  against  bail  in  any  suit  now  existing,  or  hereafter  to   be  brought 

must  be  sued  out,  376. 
Proviso  where  the  plaintiff  marries  or  dies  after  judgment,  and  proviso  also  for  infants,  376. 
Time  not  to  be  reckoned  in  case  of  nonsuit,  arrest  of  judgment  or  reversal  for  error,  376. 
Bail  in  criminal  cases  must  be  taken  by  the  sheriff  when  the  offence  is  bailable,  217. 
BANK  NOTES. 

Notes  of  the  banks  of  other  states,  &c.  under  five  dollars,  not  to  be  circulated  in  this  State,  89. 

Penalty  for  circulating  such  notes,  89. 

Robbery  of,  or  stealing  bank  notes,  &c.  how  punishable,  195. 

Counterfeiting  bank  notes,  &c.  how  punishable,  205. 

Passing  or  attempting  to  pass  counterfeit  notes,  &c.  how  punishable,  205. 

Any  person  or  corporation  issuing  notes  to  pass  for  money,  without  being  authorized  by  law  so  to 

do,  how  punishable,  213. 
BASTARDY  AND  BASTARD  CHILDREN. 

A  single  woman  being  with  child  and  refusing  to  declare  the  father,  to  pay  a  fine  and  give  security 

by  the  order  of  any  two  justices,  90. 
If  she  declare  the  father  on  oath,  he  shall  give  security  to  perforin  the  order  of  the  court  thereon  or 

be  committed,  90. 
Person  charged  to  be  bound  over  though  the  child  be  not  born,  90. 
Process  to  issue  against  the  person  charged  and  failing  to  appear,  90. 
Issue  may  be  made  up  by  the  party  charged  to  try  the  fact,  91. 
If  issue  found  against  him  or  there  be  no  issue,  he  is  to  be  bound  with  security  for  the  maintenance 

of  the  child  and  pay  the  costs  or  be  committed,  91. 
Appeal  may  be  taken  by  the  prosecuting  attorney,  91. 
Examination  must  be  within  three  years  after  birth  of  the  child,  91. 
Execution  may  issue  for  the  maintenance  of  the  bastard,  91. 
Bastard  children  may  be  legitimated  by  the  county  or  superior  courts  on  petition  of  putative  father, 

91. 
Effects  of  such  legitimation,  92.  ' 

Decree  to  be  recorded — Clerk's  fee  for  the  same,  92. 
Concealing  the  birth  of  a  bastard  child,  how  punishable,  197. 
Illegitimate  children  may  inherit  from  their  mother  and  from  each  other,  237. 

entitled  to  a  share  of  their  mother's  personal  property,  369. 
When  an  illegitimate  child  dies  without  issue,  how   his  personal  property  shall  be  distributed,  369. 
BEEF.     See  Insvecttons  and  Inspectors. 


INDEX.  637 

BENEFIT  OF  CLERGY. 

Benefit  of  clergy  taken  from  murder,  burglary,  arson  and  robbery  on  the  highway,  191. 
And  from  the  accessories  to  those  crimes  before  the  fact,  191. 
Benefit  of  clergy  not  to  be  allowed  twice,  196. 
Punishment  for  clergiable  offences,  196. 

How  offenders  to  be  dealt  with,  after  having  been  allowed  their  clergy,  196. 
Benefit  of  clergy  shall  not  release  from  an  offence  not  clergiable,  previously  committed,  197. 
Women  entitled  to  benefit  of  clergj^,  197. 
BIGAMY. 

What  shall  be  bigamy  and  how  punishable,  193. 

Not  to  be  applied  to  a  person  whose  husband  or  wife  shall  have  been  absent  seven  years,  withorut 

knowledge  of  his  or  her  existence,  193. 
Nor  to  those  who  have  been  divorced,  &c.,  193. 
BILLIARD  TABLES.     See  Revenue,  University. 
BILLS,  BONDS  AND  PROMISSORY  NOTES. 

Promissory  notes  made  negotiable  as  inland  bills  of  exchange,  93. 

Orders  in  writing  for  money  on  third  persons,  good;  and  the  drawer  or  acceptor  liable,  93. 

But  protest  for  non-acceptance  and  notice  necessary  before  a  suit  will  lie  against  the  drawer,  94. 

All  bills,  bonds  or  notes  for  money,  with  or  without  seal,  made  negotiable,  94- 

Endorsee  or  assignee  may  have  an  action  on  the  case,  or  of  debt  in  some  cases,  in  his  own  name,  94. 

Interest  on  bills,  &c.  to  accrue  from  the  time  they  become  due,  unless  otherwise  expressed,  94. 

Bills,  &c.  payable  on  demand,  to  be  due  on  demand  and  bear  interest  after  demand,  94. 

Contracts  for  the  delivery  of  specific  articles  to  bear  interest  as  moneyed  contracts,  94. 

Protested  bills  of  exchange  to  draw  interest  from  the  time  when  payable,  94. 

Damages  on  protested  bills  of  exchange,  94. 

Actions  on  protested  bills  of  exchange  may  be  brought  against  drawers  and  endorsers  jointly  or 

separately,  95. 
In  actions  against  drawer  or  endorser,  protest  of  notary,  &c.  shall  be  evidence  of  a  demand,  &c.,  95. 
For  want  of  a  notary,  protest  maybe  before  a  justice  or  clerk  or  clerk  and  master,  95. 
Endorsers  of  bills,  bonds  and  promissory  notes,  except  bills  of  exchange,  to  be  held  liable  as  sureties, 

95. 
Action  may  be  brought  against  the  maker  of  a  bill,  &c.  jointly  with  the  endorsers,  or  against  all  or 

any  one  of  them,  165. 
When  more  actions  than  one  are  brought  on  a  bill,  &c.  the  court  may  consolidate  them,  166. 
Act  of  limitations  to  apply  to  bills,  &c.  after  endorsement  in  like  manner  as  to  promissory  notes,  374. 
BILL  OF  EXCEPTIONS. 

Time  may  be  allowed  to  argue  demurrer,  bill  of  exceptions,  &c.,  157. 
Either  party  to  a  suit  may  tender  to  the  judge  a  bill  of  exceptions,  168. 

Judge  to  sign  and  seal  the  same ;  or  if  he  refuse,  some  other  person  present  may  sign  and  seal  it, 
168. 
BILL  OF  REVIEW. 

Time  within  which  bills  of  review,  and  petitions  for  rehearing,  shall  lie  or  be  allowed,  183. 
BILL  OF  RIGHTS,  7. 
BOATS  AND  CANOES. 

Persons  taking  boats,  &c.  without  leave,  to  forfeit  two  dollars  to  the  owner,  96. 
The  common  law  right  to  sue  for  damages  not  taken  away,  96. 
Penalty  on  slaves  for  taking  boats,  &c.  without  leave,  96. 
Proviso  for  cases  where  he  acts  by  order  of  his  master,  96. 

Penalty  not  to  extend  to  persons  pressing  boats.  Sic.  for  the  public  service,  or  to  those  authorized  to 
take  them,  97. 
BONDS.     See  Bills,  Bonds  and  Promissory  Notes,  Official  Bonds,  Judgment  Bonds. 
In  an  action  of  debt  on  a  bond,  &c.  payment  maybe  pleaded,  169. 

on  a  bond  with  a  penalty,  if  the  defendant  bring  into  court  tlie  principal,  interest 
and  costs,  the  bond  shall  be  deemed  discharged,  &c.,  169. 
BOOK  DEBTS. 

In  what  cases,  and  within  what  time.  Look  accounts  may  be  proved  by  the  plaintiff's  own  oath,  97. 

proved  by  the  oath  of  an  executor  or  administrator,  93. 
Copy  of  the  account  to  be  evidence,  unless  notice  given  to  produce  the  original,  98. 
Defendant  may  contest  the  evidence,  93. 
No  plaintiff  to  prove  by  his  own  oath  more  than  sixty  dollars,  98. 


t 


638  INDEX. 

BOOK   DEBTS,  (Continued.) 

Set  off  may  be  proved  in  like  manner,  93. 

Form  of  book  debt  oath,  440. 

Form  of  such  oath  when  taken  by  an  executor  or  administrator,  441 . 
BOOKS. 

County  courts  may  purchase  such  books  as  may  be  deemed  necessary,  142. 

Penalty  on  the  clerk  for  abusing  the  books  purchased,  143. 
BOUNDARY.     See  County  Boundaries.  | 

BRIDGES.     See  Roads,  Perries  and  Bridges.  1 

Burning  bridges,  how  punishable,  194. 
BRITISH  STATUTES. 

Repealed  after  the  first  of  January,  183S,  56. 
BROKERS.     See  Revenue. 
BURNING  WOODS. 

No  person  to  set  fire  to  any  woods,  except  his  own,  and  then  not  without  giving  two  days'  notice  to 
his  neighbors,  99. 

Free  persons  offending  against  this  act  to  forfeit  fifty  dollars,  and  be  liable  for  damages,  99. 

Slave  offending  to  be  whipped,  99. 

CATTLE,  HORSES  AND  HOGS. 

Every  owner  of  stock  to  have  a  mark  and  brand,  which  shall  be  recorded  in  the  county  court,  100. 

Penalty  for  killing  cattle  or  hogs  in  the  woods  and  not  exhibiting  the  head,  ears  and  hide  within 
two  days,  100. 

Cattle  not  to  be  driven  into  this  State  from  South  Carolina  or  Georgia  between  first  of  April  and  first 
of  November,  100. 

Not  to  be  driven  from  certain  parts  of  this  State  into  the  highland  parts  thereof,  between  first  of 
April  and  first  of  November,  101. 

Persons  driving  cattle  from  one  part  of  the  State  to  another,  must  have  a  certificate  of  the  place 
from  which  driven  and  of  their  healthy  condition,  101. 

Justice  not  to  grant  a  certificate  without  affidavit,  101. 

Stoned  horses  of  two  years  old  not  to  go  at  large.  101. 

Remedy  for  persons  having  stock  killed  upon  rail  roads  by  the  engines  or  cars,  101. 

All  horses,  cattle,  &c.  belonging  to  slaves,  to  be  seized  by  the  wardens  of  the  poor,  476. 

Altering  the  mark  or  mismarkihg  cattle,  &c.  how  punishable,  204. 

Damages  done  by  stock  when  fence  is  sufficient,  how  ascertained  and  recovered,  283. 

Injuries  done  to  stock  by  persons  not  having  a  legal  fence,  how  ascertained  and  recovered,  284. 

Penalty  on  slaves  for  killing  stock  in  certain  cases,  284. 
CANOES.     See  Boats  and  Canoes. 
CART  WAYS. 

In  what  cases  the  county  courts  may  order  the  laying  out  of  cart  ways,  546. 

Proceedings  for  such  purpose,  546. 

Persons  across  whose  lands  cart  ways  are  laid  out,  may  erect  bars  or  gates  across  the  same,  546. 

Cart  ways  to  be  free  for  all  persons  to  pass,  546. 

Appeals  allowed  from  orders  to  lay  off  cart  ways,  547. 
CASTRATION. 

Castration  with  malice  aforethought,  punishable  with  death,  191. 
CERTIORARI. 

Clerk  of  the  county  court  to  take  security  from  persons  obtaining  certioraris,  64. 
CHARITIES. 

Trustees  of  charities  to  deliver  annually  a  full  account  of  their  trusts  to  the  clerk  of  the  county  court, 
to  be  filed  among  the  records,  102. 

If  trustees  fail  to  render  such  account  or  mismanage  their  trusts,  the  attorney  general  or  the  solicitor 
shall  file  a  bill  in  equity  against  them,  102. 

A  suit  in  equity  may  also  be  brought  at  the  suggestion  of  two  citizens,  102. 

Attorney  general  and  solicitor  allowed  fees  in  such  cases,  102. 
CHEROKEE  INDIANS. 

Contracts  with  the  Cherokee  Indians  to  be  in  writing,  subscribed  by  two  witnesses,  290. 
CIRCUS  RIDERS  AND  EQUESTRIAN  PERFORMERS.     See  Revenue. 


INDEX.  639 

CLAIMS. 

Clerk  shall  number  all  claims,  &c.  against  the  county  in  a  book,  and  furnish  the  chairman  of  the 

court  with  a  copy  annually,  126. 
Officers  having  claims  against  the  county,  how  to  proceed,  128. 
County  trustee  to  settle  with  sheriffs  for  claims  according  to  number,  131. 
CLERK  OF  THE  SUPREME  COURT. 

Judges  to  appoint  a  clerk,  who  shall  hold  his  of&ce  four  years,  give  bond  and  security,  and  take 

oaths,  &c.,  180. 
Form  of  his  official  oath,  435- 
Clerk's  office  to  be  always  kept  in  Raleigh,  185. 
Clerk  to  record  bills,  &.c.  and  such  other  parts  of  their  proceedings  as  the  court  shall  direct — His  pay 

therefor,  186. 
Clerk  of  the  supreme  court  to  make  statements  and  returns  of  all  moneys  remaining  in  his  hand  for 

three  years,  427. 
To  whom  such  money  to  be  paid  over,  427. 
Penalty  for  failure  to  pay  such  moneys,  427. 
How  to  be  proceeded  against  for  failing  to  pay,  427. 
Statement  of  returns  to  be  setup,  &c.,428. 
Penalty  for  failure,  428. 
Salary  of  the  clerk  of  the  supreme  court,  549. 
His  fees,  556. 
CLERKS  AND  MASTERS  IN  EaUITY. 

Judges  of  the  courts  of  equity  to  appoint  clerks  and  masters,  v/ho  shall  hold  their  offices  for  four 

years,  108,  176. 

How  vacancies  shall  be  filled,  103. 

Clerks  and  masters  to  give  bonds  and  take  oaths,  as  clerks  of  the  superior  courts  of  law.  108,  125. 

Form  of  their  official  oath,  435. 

Same  remedies  against  them  as  against  clerks  of  the  superior  courts  of  law,  108. 

Duty  of  clerks  and  masters  in  keeping  a  record,  and  enrolling  bills,  answers,  decrees,  &c.,  103. 

Clerks  and  masters  may  administer  oaths,  108. 

May  take  affidavits  to  be  used  before  any  justice,  judge  or  court,  109. 

A  tax  of  two  dollars  on  every  subpoena  to  answer  a  bill  in  equity  shall  be  received  by  the  clerk  and 

master  and  accounted  for  to  county  ti-ustee,  124. 
Penalty  for  failing  to  make  settlement  with  committee  of  finance,  after  ten  days'  notice,  128. 
Penalt}-  for  failing  to  pay  over  tax  fees  on  suits,  131. 

Clerk  and  master  to  make  title  to  property  sold  under  an  order  of  the  court  of  equity,  183. 
Clerks  and  masters  to  make  statements  and  returns  of  all  moneys  remaining  in  their  hands  for  three 

years,  427. 
To  whom  such  moneys  to  be  paid  over,  427. 
Penalty  for  failing  to  pay  such  moneys,  427. 
How  to  be  proceeded  against  for  failing  to  pay,  427. 

Statement  of  the  returns  to  be  set  up  in  the  court  house— Penalty  for  failure,  428. 
Clerks  and  masters  may  act  as  notaries,  430. 
Fees  for  acting  as  notaries,  430. 

For  remedy  on  their  bonds  against  them  and  their  sureties,  see  Official  Bonds. 
Fees  of  clerks  and  masters,  556. 

Suits  on  the  bonds  of  clerk  and  masters  must  be  brought  within  six  years,  374. 
CLERKS  OF  THE  COUNTY  AND  SUPERIOR  COURTS. 

To  be  elected  every  four  years  in  the  same  manner  as  members  of  the  General  Assembly,  103. 

And  by  the  persons  qualified  to  vote  for  members  of  the  General  Assembly,  104. 

Who  to  declare  the  persons  elected,  104. 

To  hold  their  offices  for  four  years,  104. 

County  court,  a  majority  of  justices  being  present,  to  decide  in  case  of  a  tie  and  to  decide  contested 

elections,  104. 
To  give  bonds,  104,  125. 

On  failure  to  give  bonds,  &c.  court  to  appoint  another,  104. 
How  vacancies  in  the  office  of  superior  court  clerk  to  be  supplied,  104. 
How  in  that  of  the  county  court  clerk,  104. 
Judge,  upon  the  appointment  of  a  superior  court  clerk,  to   make   an  order  for  the  surrender  of  the 

records,  104. 


640 


INDEX. 


CLERKS  OF  THE  COUNTY  AND  SUPERIOR  COURTS,  (Continued.) 

Besides  the  bonds  for  accounting  for  taxes,  &c.  the  clerks  shall  y;ive  bonds  in  the  sum  of  ten  thou- 
sand doUars  for  keeping  the  records  and  the  faithful  discharge  of  their  duty,  105. 
How  the  bonds  of  the  clerks  of  the  respective  courts  shall  be  proved  and  where  deposited,  105. 
Bonds  to  be  registered  and  copies  to  be  evidence  where  the  originals  are  lost,  105. 

to  be  kept  as  records,  105. 
Clerks  to  renevsr  their  bonds  annually  or  to  forfeit  their  offices,  105. 

Must  produce  receipts  in  full  for  all  public  moneys  by  them  received  before  renewing,  105. 

Penalty  for  acting  as  clerk  before  giving  bond  and  qualifying,  106. 

Oaths  to  be  taken  by  clerks  before  entering  upon  their  offices,  106. 

Form  of  their  official  oath,  435. 

Penalty  for  violating  oath  or  misbehavior  in  office,  106. 

Clerks'  offices  to  he  kept  at  their  respective  court  houses,  106. 

Deputies  to  be  qualified  and  to  act  in  case  of  the  death  of  the  clerk,  106. 

To  whom  clerk  shall  resign,  106. 

Countj'  courts  in  certain  cases  may  remove  their  clerks  and  appoint  others,  106. 

Twelve  months  residence  out  of  the  county  shall  vacate  the  office  of  county  court  clerk,  100.    , 

In  such  case  how  the  clerk  is  to  be  proceeded  against  and  removed,  107. 

Clerks,  upon  resignation  or  removal,  to  deliver  over  to  their  successors  the  records,  &c.,  107. 

All  -writs  shall  run  in  the  name  of  the  State  of  North  Carolina  and  bear  test  and  be  signed  by  the 
clerks  of  the  respective  courts,  16. 

Clerks  of  the  county  and  superior  courts  may  take  affidavits  to  l)e  used  before  any  justice,  judge  or 
court,  109.  • 

To  pay  to  the  treasurer  all  public  moneys  recovered  by  law  and   file   receipts  with   the  comp- 
troller, 112. 

Clerks  may  be  allowed  by  the  county  court  for  extra  services,  126. 

Clerk  of  the  county  court  shall  number  all  claims  against  the  county  in  a  book  and  annually   fur- 
nish the  chairman  with  a  copy,  126. 

Penalty  for  failure,  126. 

His  compensation  for  this  service,  120. 

Clerks  of  county  courts  authorized  to  take  probate  of  mortgages  and  deeds  of  trust,  232. 

Clerks  to  make  statements  and  returns  of  all  moneys  remaining  in  their  hands  for  three   years, 
427. 

To  whom  such  money  to  be  paid,  427. 

Penalty  for  failing  to  pay  over,  427. 

How  to  be  proceeded  against  for  failing  to  pay,  427. 

Statement  of  returns  to  be  set  up  in  the  court  house — Penalty  for  failure,  42S. 

Clerks  may  act  as  notaries— Fees  for  the  same,  430. 

Suits  on  the  official  bonds  of  clerks,  &c.  may  be  brought  by  the  party  injured,  443. 

Declaration  must  shew  in  whose  behalf  the  suit  is  brought,  443. 

Person  injured  may  at  his  election  sue  the  officer  in  an  action  on  the  case,  443. 

Remedy  before  a  justice  of  the  peace  against  clerks  and  other  officers  who  neglect  to   pay  over 
moneys  received  within  the  jurisdiction  of  a  justice,  443. 

Summary  remedy  in  court  against  clerks  and  other  officers  failing  to  pay  moneys  received,  443. 

Twelve  per  cent,  damages  allowed  on  money  unlawfully  detained  by  an  officer,  444. 

Clerks  of  the  county  court  to  record  the   names  of  the  justices  present  when  appointments   are 
made,  444. 

Such  justices  failing  to  take  bond,  are  to  be  held  securities  themselves,  444. 

Copy  of  the  record  to  be  evidence  against  them,  444. 

Clerks  of  the  county  courts  to  deliver  deeds  and  pay  over  register's  fees  after  ten  days   from   the 
rise  of  the  court,  501. 

Fees  of  clerks  of  the  county  courts,  552. 
of  the  superior  courts,  554. 

Clerks  to  have  no  fee  on  a  capias  in  certain  cases,  554. 

In  certain  cases  clerks  to  have  only  half  fees,  554.. 

Clerks  of  the  county  and  superior  courts  to  keep  a  copy  of  the  clerk's  and  sheriff's  fees  posted  up 
in  their  offices,  &c.,  556. 

Clerks  of  courts  may  issue  execution  for  fees  in  certain  cases — Bill  of  costs  to  be  annexed,  556. 


INDEX.  641 

CLERKS  OP  THE  COUNTY  AND  SUPERIOR  COURTS,  (Continued.) 

For  the  duties  of  clerks  iu  regard  to  appeals   and  proceedings  in  the   nature  of  appeals,  see  Ap- 
peals  and  Proceedings  in  the  Nature  oj"  Appeals. 

For  clerks'  duties  in  relation  to  auctions  and  auctioneers,  see  Auctions  and  Auctioneers. 

For  clerks'  duties  in  collecting  and  paying  over  taxes  on  suits  and  attorneys'  licenses,  and  generally 
in  relation  to  the  county  funds,  see  County  Revenue  and  Charges. 

For  clerk's  duty  in  regard  to  issuing  process  and  proceedings  in  court,  see  Courts,  County  and 
Superior-. 

For  the  duty  of  the  clerk  of  the  county  court  in  regard  to  elections,  see  Elections. 

For  clerks's  duty  in  issuing  summons  to  guardians  to  renew  their  bonds,  or  settle  their  accounts, 
see  Guardian  and  Ward. 

Suits  on  clerks' bonds  must  be  brought  within  six  years,  374. 

As  to  the  duty  of  the  clerk  of  the  county  court  in  issuing  licenses  to  marry,  &c..  see  Marriage. 

For  the  various  duties  of  clerks  in  regard  to  the  state  taxes,  see  Revenue. 

Clerks  of  county  courts  to  fui-nish  sheriffs  with  orders  appointing  overseers  of  roads,  540:. 
COMMISSIONERS. 

Public  commissioners  becoming  contractors,  to  be  guilty  of  a  misdemeanor,  200. 
COMMISSIONERS  OF  AFFIDAVITS. 

Clerks  of  county  and  superior  courts  and  clerks  and  masters  may  take  and  certify  affidavits  to  be 
used  before  any  justice,  judge  or  court,  109- 

If  affidavit  to  be  used  out  of  their  county,  certificate  to  be  under  seal  of  the  court,  109. 

Governor  to  appoint  commissioners  in  other  states  to  take  the  proof  or  acknowledgment  of  deeds, 
&c.,  109. 

Such  commissioners  to  take  an  oath,  109. 

Governor  to  notify  clerks  of  courts  of  record  of  such  appointments,  110. 

Power  of  such  commissioners  to  administer  oaths,  &c.,  HO. 

Fees  of  commissioners  of  affidavits,  559. 
COMMISSIONERS  OF  NAVIGATION.    See  Pilots  and  Commissioners  of  Navigation,  Quaran- 
tine and  Health. 
COMMITTEE  OF  FINANCE. 

County  Court  may  appoint  three  persons  to  act  as  a  committee  of  finance,  127. 

Duty  and  powers  of  such  committee,  127. 

Committee  to  make  investigation  of  all  the  financial  concerns  of  the  county,  and  make  return  to  the 
court  at  the  end  of  each  financial  year,  127. 

Pay  of  the  committee,  127. 

Any  officer  failing  to  settle  after  receiving  ten  days'  notice  from  the  committee,  to  forfeit  one  hun- 
dred dollars,  128. 

Oath  to  be  taken  by  the  members  of  the  committee,  123.  ' 

Penalty  for  refusing  to  serve  on  the  comiTiittee,  128. 

Officers  having  claims  against  the  county,  how  to  proceed  with  the  committee,  128. 

Clerks  to  furnish  the  committee  with  a  statement  of  the  sums  allowed  by  the  county  court,  128. 

Committee  may  institute  suit  for  the  recovery  of  money  belonging  to  the  county,  129. 

County  court  to  fill  vacancies  in  the  committee,  129. 

The  committee  of  finance  of  the  legislature  at  each  session  to  examine  into  and  report  the  state  of 
the  treasury,  602. 
COMMON  LAW. 

What  parts  of  the  common  law  in  force  in  this  State,  110. 
COMMON  SCHOOLS.     See  Literary  Fund. 
COMPTROLLER. 

To  be  biennially  elected  by  the  General  Assembly,  111. 

To  give  bond  in  twenty  thousand  dollars,  to  be  deposited  in  the  treasurer's  office,  111. 

To  take  oaths.  111. 

Form  of  the  comptroller's  oath  of  office,  433. 

To  settle  ail  public  accounts  and  keep  books,  HI. 

To  keep  an  account  with  the  treasurer,  112. 

To  have  monthly  settlements  with  the  treasurer,  602. 

To  keep  accounts  with  individuals,  112. 

Public  moneys,  recovered  by  law,  to  be  paid  to  the  treasurer,  and  the  receipts  to  le  filed  with  the 
comptroller,  112. 

VOL.   I.  81 


642  .  INDEX. 

COMPTROLLER,  (Continued.) 

Balances  of  accounts  to  be  stated  annually  and  reported,  112. 

Comptroller  to  report  annually  a  printed  statement  of  the  accounts  of  the  treasury,  112. 

And  a  statement  of  the  revenue  from  each  subject  of  taxation,  112. 

In  certain  cases  may  administer  an  oath,  113. 

No  warrants,  &c.  to  be  paid  unless  first  entered  in  the  comptroller's  office,  and  certified  by  him,  113. 

Instrument  for  cancelling  vouchers  to  be  procured,  113. 

Comptroller's  certificate  to  be  evidence,  113. 

Salary  of  the  comptroller,  what  and  when  to  be  paid,  549. 

Comptroller  may  have  blanks,  &c.  printed  for  the  use  of  his  ofiice,  at  the  expense  of  the  State,  491. 

For  comptroller's  duty  in  relation  to  '  auctions  and  auctioneers,  see  Auctions  and  Auctioneers. 

For  other  duties  of  the  comptroller  in  regard  to  the  public  revenue,  see  Revenue.     Treasurer. 
CONGRESS.     See  Members  of  Congress. 
CONSTABLES. 

Number  of  constables  in  each  county,  114. 

Constable  to  be  elected  annually  in  each  captain's  district,  114. 

To  qualify  before  the  county  court  and  give  bond,  114. 

Judges  of  election,  how  appointed,  115. 

Notice  to  be  given  and  return  made  to  the  county  court,  llS. 

County  courts  to  appoint,  if  any  failure  in  the  election,  and  to  determine  in  case  of  a  tie  or  contested 
election,  115. 

Penalty  on  persons,  not  qualified,  voting,  115. 

Vacancies  to  be  supplied  by  the  county  court,  115. 

Bond  to  be  given  and  remedy  thereon,  115. 

Oaths  to  be  taken,  115. 

Form  of  their  official  oath,  436. 

Power  and  duty  of  constables,  115. 

Any  justice  may,  in  certain  cases,  appoint  a  special  constable,  116. 

Penalty  on  constable  for  acting  after  his  term  has  expired,  116. 

Constables  exempted  from  working  on  roads,  116. 

Constables  to  be  sworn  to  attend  juries,  150. 

Form  of  the  oath  to  be  taken  by  a  constable  charged  with  a  jury,  440. 

Form  of  the  oath  to  be  taken  to  attend  the  grand  jury,  440. 

For  a  summary  remedy  on  their  bonds  against  them  and  their  sureties,  see  Official  Bonds. 

Fees  of  constables,  557. 

For  a  constable's  duty  in  executing  process  and  serving  notices  in  proceedings  before  justices,   see 
Justices  of  the  Peace. 

Suits  on  constables'  bonds  must  be  brought  within  six  years,  374. 

Constables  to  demand  a  view  of  the  licenses  of  pedlers,  rope  dancers,  &c.,  516. 
CONSTITUTION. 

Constitution  of  the  State  and  amendments  thereto,  11. 

Constitution  of  the  United  States  and  amendments  thereto,  28. 
CONTINGENT  LIMITATIONS. 

Certain  contingent  limitations  in  deeds  or  wills,  how  construed,  259,  622. 
CONTRACTS. 

Contracts  for  the  sale  of  land  and  slaves  must  be  in  writing,  290. 

Contracts  of  executors,  &c.  to  be  answerable  out  of  their  own  estate,  or    contracts  to  charge  any 
person  with  the  debt,  &c.  of  another,  must  be  in  writing,  290. 

Contracts  with  the  Cherokee  Indians  must  be  in  writing,  subscribed  by  two  witnesses,  290. 

Promises,  &c.  to  pay  money  upon  any  kind  of  gaming,  or  lent  for  the  purpose  of  gaming,  void,  291. 

Contracts  for  the  sale  of  offices  to  be  void,  442. 
COOPERS  AND  COOPERAGE.    See  Inspection  and  Inspectors. 
CORONERS. 

To  be  appointed  by  the  county  courts,  117. 

Majority  of  justices  to  be  present,  117. 

Bond  to  be  given  and  renewed  annually,  117. 

Three  justices,  in  certain  cases,  may  appoint,  1 1  7. 
*  Oaths  to  be  taken,  117. 


INDEX.  "^^^ 

CORONERS,  {Continued.) 

Form  of  coroner's  official  oath,  436. 

Duty  of  the  coroner  in  holding  inquests,  117.  ,,     rw    „.  cT^nvifT  iir 

Whire  there  is  no  sheriff,  properly  qnaMed,  coroner  shall  act  -^  ^^^^^^f  ^  J^^       ^^^• 
For  a  remedy  on  their  bonds  against  them  and  their  sureties,  see  0^c^al  Bonds. 

?o:::e?r;;r;hesame  bonds  and  talce  the  same  oaths   as  the   sheriff,  when  required  to  act  as 
sheriff,  in  case  of  a  vacancy  in  the  sheriff's  office,  567. 
CORPORATIONS. 

How  to  convey  lands,  1 18. 

In  suits  against  a  corporation,  summons  to  issue,  119. 

On  whom  the  summons  to  be  served,  119. 

How  returned,  119. 

Suits  in  equity,  how  proceeded  on,  119. 

What  execution  to  issue  on  judgments  against  them,  119. 

When  and  how  an  information  may  be  filed  against  a  corporation,  1-0. 

Court  may  require  a  bond  to  be  given  by  the  relators,  120. 

How  the  supreme  court  may  proceed  to  ascertain  facts,  120. 

bring  certam  officers  to  account,  &c.,  121.  members  personally  liable  to 

In  case  of  fraud  hi  members  of  a  corporation,  court  may  render  sucU  memoei     p 

creditors  and  others  injured,  121.  „;.i„.l  in  it«  nharter  121 

No  corporation  to  exist  longer  than  thirty  years,  unless  otherwise  provided  m  its  chartei, 
What  length  of  nonuser  to  be  a  forfeiture  of  corporate  privileges,  121 . 
Shares  in  incorporated  joint  stock  companies  to  be  personal  estate,  121. 
The  State  to  be  a  stockholder  in  any  company  to  the  amount  she  may  advance,  348. 

COSTS.  >,.„,„.v.t  Kir  lii«!  wife  to  sive  new  security  for  the  costs,  76. 

may  be  taxed  against  him,  66. 
Supreme  court  may  give  judgment  for  costs  on  appeals,  66. 
In  attachments,  bond  and  security  to  be  given  for  the  costs,  71-76. 
Persons  interpleading  in  attachment  to  give  security  for  costs  74. 
Attorney  to  pay  costs  when  a  suit  is  dismissed  for  want  of  a  declaration,  81. 

Costs  of  scire  facias  to  be  paid  by  bail  in  certain  -- J^^  •  ,„„,  fo,  ,,,,,  ^,y  te  re- 

Upon  information  filed  agamst  corporations,  &c.  on  the  relation       om      , 
quired  of  the  relators,  120.  .  „^   lor 

Costs  in  criminal  prosecutions  to  be  paid  by  the  counties  in  certain  cases,  12o. 

County  wherein  the  offence  was  committed  to  pay  costs,  125. 

Costs  of  inquests  to  be  paid  by  the  county,  126. 

When  plea  in  abatement  is  overruled,  plaintiff  shall  recover  costs,  lo8. 

sufficient  cause  for  such  appeal  is  shown,  170. 
Costs  in  equity  to  be  at  the  discretion  of  the  court,  ^81. 
Execution  for  costs,  how  issued  from  the  supreme  court,  188. 


644  INDEX. 

COSTS,  (Continued.) 

County  and  superior  courts  may,  in  certain  cases,  direct  the  prosecutor  to  pay  costs  219. 

On  warrants  returned  to  court  by  a  justice,  upon  a  plea  of  want  of  assets,  tlie  costs  to  be  the  same 

as  in  appeals,  278. 
A  creditor,  on  the  trial  of  a  scire  facias  against  heirs,  &c.  shall  recover  the  costs  of  the  original 

suit,  364. 
In  petitions  for  damages,  caused  by  the  erection  of  mills,  where  the  verdict  is  that  there  is  no  dam- 
ages, the  petitioner  shall  pay  costs,  or  if  damages  be  under  five  dollars,  he  shall  have  no  more 
costs  than  damages,  424. 
If  petitioner  for  damages,  caused  by  erection  of  a  mill,  appeal  and  recover  no  higher  damages,  he 

shall  pay  the  costs  of  the  appeal,  424. 
Upon  informations  in  the  nature  of  quo  warranto,  the  party  succeeding  shall  recover  costs,  499. 
Bill  of  costs  to  be  annexed  to  execution  for  fees,  556. 

Owners  of  slaves  to  be  liable  for  the  costs  of  their  trial  in  criminal  cases,  583. 

The  costs  of  the  petition  for  a  year's  provision,  to  be  paid  by  the  administrator  out  of  the  assets  of 
the  estate — Proviso,  616. 
COUNCIL  OP  STATE.     See  Governor  and  Council. 
COUNTERFEITING. 

Counterfeiting  gold  or  silver  coin,  how  punishable,  204. 
Having  in  possession  instruments  for  counterfeiting,  how  punishable,  204. 
Counterfeiting  banknotes,  &c.,  how  punishable,  205. 
Passing  or  attempting  to  pass  counterfeit  notes,  &c.,  how  punishable,  205. 
COUNTY  BOUNDARIES. 

In  case  of  disputed  lines  between  counties,  the  county  courts  of  each  county  may  appoint  commis- 
sioners to  settle  them,  122. 
Commissioners  to  be  sworn  and  to  be  paid,  122. 
COUNTY  REVENUE  AND  CHARGES. 

County  courts  to  lay  taxes  for  county  purposes,  123. 

County  taxes  to  be  collected  by  the  sheriff  in  like  manner  as  the  state  taxes,  123. 

Sheritfto  give  bond  for  the  collection  of  the  county  and  poor  taxes,  123. 

All  fines,  &c.  to  be  paid  over  to  the  county  trustee,  124. 

Also  taxes  on  attorneys'  licenses,  to  wit,  ten  dollars  in  the  superior  and  ten  in  the  county  courts,  124. 

Also  a  tax  of  one  dollar  on  each  suit  and  indictment  disposed  of  in  the  county  or  superior  court,  124. 

Also  a  tax  of  two  dollars  in  each  suit  in  equity,  124. 

Sheriff  shall  collect  and  pay  over  to  county  trustee  all  fines,  amercements;  &c.,  124. 

And  return  the  names  of  persons  from  whom  received,  124. 

Clerk  to  render  to  the  county  trustees  an  annual  statement  of  fines,  &c.,  124. 

Penalty  of  five  hundred  dollars  on  clerk,  sheriflT,  &c.  for  failing  to  pay  over  county  moneys  or  m^^ke 

returns,  125. 
Clerks  and  clerks  and  masters  to  give  bond  for  the  payment  of  taxes,  &c.,  125. 
Cost  of  state  prosecutions  to  be  paid  by  the  counties  in  certain  cases,  125. 
Witnesses  for  the  State  to  be  paid  by  the  counties  in  certain  cases,  125. 
County  wherein  the  offence  was  committed  to  pay  costs,  125. 
Such  county  to  receive  the  fines,  &c.,  125. 
County  to  pay  the  costs  of  inquests,  126. 

County  courts  may  make  allowances  to  certain  officers  for  extra  services,  126. 
Clerk  shall  number  all  claims  against  the  county  in  a  book,  and  furnish  the  chairman  of  the  court 

with  a  copy  annually,  126. 
And  insert  the  claims,  according  to  number,  in  the  tax  list  furnished  the  sheriff,  126. 
Clerk  failing  to  number  the  claims,  &c.  to  forfeit  twenty  dollars,  126. 
Clerk  to  be  allowed  not  exceeding  four  dollars  for  this  service,  126. 
A  statement  of  moneys  received  and  expended  for  county  purposes  to  be  annually  set  up  in  the  court 

house,  126. 
County  court  may  lay  taxes  for  the  payment  of  the  patrol,  126. 
And  for  the  payment  of  jurors,  127. 

Power  of  the  county  court  in  disposing  of  the  county  funds,  127. 
County  court  may  appoint  three  persons  to  act  as  a  committee  of  finance,  127. 
Powers  and  duty  of  such  committee,  127. 


INDEX.  645 

COUNTY  REVENUE  AND  CHARGES,  {Continued.) 

Committee  to  investigate  all  the  financial  concerns  of  the  county  and  report  to  the  court  at  the  end 
of  each  financial  year,  127- 

Pay  of  the  committee,  127. 

Any  officer  failing  to  settle  after  receiving  ten  days'  notice,  to  forfeit  one  hundred  dollars,  128. 

Oath  to  be  taken  by  the  members  of  the  committee,  128. 

Fifty  dollars  penalty  for  refusing  to  serve  on  the  committee,  128. 

Officers  having  claims  against  the  county  to  submit  them  to  the  committee,  128. 

Clerk  to  furnish  the  committee  with  a  statement  of  the  sums  allowed  by  the  county  court,  128. 

Committee  may  institute  suit  for  the  recovery  of  money  belonging  to  the  county,  129. 

County  courts  to  fill  vacancies  in  the  committee,  129. 
COUNTY  SOLICITORS. 

To  be  appointed  by  the  county  courts — Their  term  of  office  and  duty,  80. 

Form  of  their  official  oath,  436. 

Fees  of  county  solicitors,  552.  *: 

€OUNTY  TRUSTEES. 

To  be  appointed  by  the  county  courts  annually,  130. 

County  courts  to  fill  vacancies,  130. 

County  trustee  to  give  bond  and  take  oaths,  130. 

Form  of  county  trustee's  official  oath,  436. 

To  collect  all  moneys  due  his  county,  130. 

To  call  annually  on  the  sheriff  and  clerks  for  all  moneys  in  their  hands  due  his  county,  130. 

If  not  paid,  to  move  the  county  court  for  judgment  against  them,  giving  them  ten  days'  notice,  130. 

Penalty  on  county  trustee  for  breach  of  this  duty,  131 . 

Penalty  on  sheriiTs,  clerks,  and  clerks  and  masters,  for  failing  to  pay  county  trustee,  130,  131. 

County  trustee  to  settle  with  sheriffs  for  claims  according  to  number,  131. 

Compensation  allowed  county  trustee,  181,  557. 

County  trustees  to  settle  with  the  courts  annually,  131 . 

Penalty  on  county  trustees  for  neglect  of  duty,  131. 

The  county  court,  a  majority  of  the  justices  being  present,  may  abolish  the  office  of  county  trustee 
and  devolve  the  duties  of  such  office  on  the  sheriff,  131. 

County  trustee  to  collect  money  due  for  strays,  and  to  have  six  per  cent,  for  collections,  596. 
COURT  HOUSES,  PRISONS  AND  STOCKS. 

County  courts  to  erect  and  keep  in  repair  court  houses,  prisons  and  stocks,  and  lay  a  tax  for  that 
purpose,  132. 

Jails  to  have  four  separate  apartments,  133. 

Grand  jury  at  each  court  to  visit  the  jail  and  report  on  its  condition,  133. 

County  court  to  appoint  a  treasurer  of  public  buildings — His  duty— Bond  to  be  given,  133. 
to  fill  vacancies  in  such  office,  133. 

Treasurer  of  the  public  buildings  to  settle  his  accounts  annually  with  the  court,  133. 

Penalty  for  failing  to  settle,  and  how  to  be  proceeded  against,  134. 

What  to  be  done  when  the  treasurer  of  public  buildings  recommends  alterations,  repairs,  &c.,  134. 

Burning  a  court  house,  &c.  punishable  with  death,  192. 

Attempt  to  burn  a  courthouse,  &c.,  how  punishable,  197. 

When  the  jail  of  any  county  shall  be  destroyed,  the  prisoners  shall  be  sent  to  the  jail  of  an  adjoin- 
ing county,  478. 

Where  there  shall  be  no  jail  in  any  county,  the  courts  and  magistrates  may  send  prisoners  to  the  jail 
of  an  adjoining  county,  478. 

In  such  cases  the  sheriff,  &c.  may  confine  any  person  arrested  under  process,  civil  or  criminal,  in  the 
jail  of  an  adjoining  county,  478. 

Sheriff  apprehensive  of  prisoners  escaping,  how  to  proceed  to  obtain  a  guard — Persons  ordered  on 
guard  to  be  paid,  479. 

Claims  for  guarding,  &c.  prisoners,  to  be  paid  by  the  county  from  which  they  are  sent,  479. 

Jailer  to  cleanse  the  jail  and  furnish  diet,  &c.,  480. 

Blankets  and  bed  clothing  to  be  provided  for  the  use  of  prisoners,  480. 

Prison  bounds  for  the  benefit  of  prisoners,  to  be  laid  out  by  the  county  court,  4S0. 
Manner  of  transferring  prisoners  from  a  sheriff  to  his  successor,  4-^1. 

Prisoners  to  be  confined  in  the  proper  apartments  of  the  jail — Penalty  on  the  sherifl^  or  jailer  for  con- 
fining them  otherwise,  481. 


646 


INDEX. 


COURTS,  COUNTY  AND  SUPERIOR. 

Justices  of  the  peace  to  be  judges  of  the  courts  of  pleas  aiil  quarter  sessions,  139. 

At  what  times  the  said  courts  shall  be  held,  139,  140,  141. 

They  may  sit  six  days  if  the  business  shall  require  it,  141. 

One  justice  may  adjourn  the  court  from  day  to  day  until  a  sufficient   number  appear  to  do  business, 

141. 
Justices  faih'ng  to  hold  court,  not  to  discontinue  the  court  or  any  process  thereon,  141. 
Three  justices  to  hold  the  terms  of  the  said  court,  142. 
Their  general  jurisdiction,  142. 

Court  may  purchase  such  books  as  may  be  deemed  necessary,  142. 
The  court,  a  majority  of  justices  being  present,  may  appoint  a  special  court,  &c.,  1  42. 
Justices  of  the  special  court  to  be  paid,  142. 
Penalty  on  clerk  for  abusing  the  books  purchased,  143. 
Court  may  lay  a  tax  for  purchasing  books,  143. 
A  superior  court  to  be  holden  in  each  county,  143. 
The  State  divided  into  seven  circuits,  143. 
Counties  composing  each  circuit,  143. 
When  the  superior  court  holden  in  the  first  circuit,  143. ' 
When  in  the  second  circuit,  144. 
When  in  the  third  circuit,  144. 
When  in  the  fourth  circuit,  144. 
When  in  the  fifth  circuit,  145. 
When  in  the  sixth  circuit,  145. 
When  in  the  seventh  circuit,  145. 
The  superior  courts  shall  sit  one  week  in  each  county,  unless  the   business  be  sooner  determined 

143.  ' 

The  superior  court  of  Anson  to  continue  two  weeks  at  the  fall  term  if  the  business  require  it,  145. 
The  terms  of  Mecklenburg,  Buncombe,  Burke  and  Rutherford   superior  courts    to  continue  two 

weeks,  when  necessary,  145,  146. 
The  superior  courts  may  be  kept  open  in  any  county  longer  than  one  week,  for  the  purpose  of  clos- 
ing a  trial  in  a  capital  case,  146. 
The  said  courts  shall  be  holden  by  judges,  146. 
The  judges  to  be  chosen  by  the  General  Assembly  and  commissioned  by  the  governor,  and  to  hold 

their  offices  during  good  behavior,  13,  21- 
May  be  impeached,  23. 
May  be  removed  from  office  by  concurrent  resolution  of  two  thirds  of  both  branches  of  the  General 

Assembly,  23. 
Their  salaries  shall  not  be  diminished  during  their  continuance  in  office,  23. 
■    Salaries  of  the  judges  of  the  superior  courts,  549. 
General  powers  and  jurisdiction  of  the  judges,  14  6. 
Oaths  to  be  taken  by  the  judges,  146. 

To  be  subscribed  by  the  judges  and  returned  to  the  secretary  of  state,  145. 
Penalty  on  judge-for  acting  without  taking  the  oaths,  14G. 
Form  of  the  oath  to  be  taken  by  judges  of  the  superior  court,  433. 
Judges  to  allot  the  circuits  among  themselves  and  publish  the  same,  146. 
May  exchange  circuits,  147. 
If  no  judge  attend  the  first  day  of  the  term,  the  sherifi"  may  adjourn  from  day  to  day  till  the  third 

day,  147. 
County  court  to  form  a  jury  list  from  the  list  of  taxables,  taking  none  but  persons  well  qualified, 

147. 
Jury  list  to  continue  and  be  examined  every  two  years,  147. 

The  number  of  jurors  to  be  drawn  for  the  superior  courts,  and  how  they  are  to  be  drawn ,  147. 
Number  to  be  drawn  for  the  county  courts  and  how  drawn,  148. 
Persons  having  suits  in  court  not  to  be  drawn,  nor  justices  in  the  county  courts,  143. 
On  failure  of  the  county  court  to  draw  jurors,  the  sheriff"  and  clerk  with  three  justices  may  draw 

them,  143. 
County  courts  may  dispense  with  a  jury  at  two  of  their  terms,  148. 
Jurors  how  to  be  summoned — Shall  attend  till  discharged  by  the  court,  143. 
Tales  jurors  may  be  summoned  when  necessary,  149. 


INDEX.  647 

COURTS,  COUNTY  AND  SUPERIOR,  {Continued.) 

Penalty  on  jurors  for  not  attending  when  summoned,  149. 

Juror  to  have  till  succeeding  term  to  make  his  excuse,  149. 

Penalty  on  tales  jurors  for  not  attending,  149. 

Jurors  exempt  from  service  of  civil  process   149. 

Ministers  of  the  gospel  and  regular  physicians  exempt  from  serving  as  jurors,  149. 

Grand  jury,  how  to  be  drawn,  149. 

Quakers  competent  to  serve  as  jurors  in  criminal  cases,  149. 

How  the  petit  jurors  shall  be  sworn  in  civil  cases,  150. 

How  in  state  cases  not  capital,  150. 

Proviso  that  the  usual  challenges  shall  not  be  affected,  150. 

Names  of  the  jurors  to  be  called  over  in  the  hearing  of  the  parties  before  empanelling  them,  when 
each  party  may  challenge  four  peremptorily,  150. 

Actions,  where  to  be  brought,  150. 

Actions,  otherwise  brought,  to  be  abated  on  plea,  151. 

No  suit  to  be  brought  in  any  court  for  any  claim  under  sixty  dollars  on  an  unliquidated   account, 
&c.,  nor  for  a  sum  under  one  hundred  dollars  due  by  note,  &c.,  151. 

If  a  suit  be  commenced  in  the  county  court  for  a  sum  under  sixty  dollars,  due  by  account,  it  may 
be  abated- — If  for  a  sum  under  one  hundred  dollars,  due  by-note,  6z,c.,  it  may  be  dismissed,  151. 

If  a  suit  in  either  of  these  cases  be  commenced  in  the  superior  court,  it  shall  be  dismissed,  151. 

In  either  of  those  cases  in  the  superior  court,  where  the   suit  is  commenced  for  more  aad  the  jury 
find  less  to  be  due,  the  plaintiff  to  be  nonsuited  unless  he  file  an  affidavit  that  more  is  due,  151. 

Not  to  extend  to  suits  on  penal  bonds,  &c.,  151. 

The  day  when  process  issues  to  be  marked  thereon  and  the  sheriff  to  endorse  the  day  when  he  re- 
ceives it,  152. 

Clerks  to  take  security  for  costs  before  issuing  any  writ   or  other  leading  process,   otherwise  the 
suit  may  be  dismissed,  152. 

Proviso  in  favor  of  persons  suing  in  forma  pauperis,  152. 

Clerks  to  enter  in  a  book  the  names  of  parties  to  suits  and  their  sureties,  152. 

Penalty  on  clerks  for  issuing  process  without  taking  security,  152. 

Poor  persons  may  sue  OT./or??iapawpe7-is,  153. 

When  writs  may  issue  to  different  counties  at  the  same  time,  returnable  to  the  county  or  superior 
courts,  153. 

The  real  plaintiff  in  ejectment  to  give  security  for  costs,  153. 

Persons  desiring  to  be  made  defendants  in  ejectment  must  give  a  bail  bond,  153. 

Where  plaintiff  in  ejectment  makes  an  affidavit  that  defendant  entered  into  his  land  as  his  tenant 
&c.,  defendant  shall  not  plead,  until  he  gives  bond  for  the  costs  and  damages,  153. 

What  facts  in  such  case  the  jury  are  to  find,  154. 

If  they  find  for  the  plaintiff,  they  must  assess  damages  for  the  occupation,  &c.,  154. 

Defendant  may  rebut  plaintiff's  affidavit  by  his  own,  154. 

If  plaintiff  in  ejectment  does  not  give  security  for  costs,  his  suit  to'be  dismissed,  154. 

Defendant  to  give  bail  or  be  in  custody  before  pleading,  154. 

Writs  and  other  civil  process,  when  to  be  returned,  154. 

How  long  before  court  to  be  executed,  154. 

When  sheriff  returns  that  he  has  defendant  in  jail,  how  plaintiff  to  proceed,  155. 

No  female  shall  be  taken  or  imprisoned  for  debt,  155. 

How  plaintiff  may  proceed  when  sheriff  returns  that  defendant  is  not  to  be  found,  155. 

May  sue  out  an  alias  era  judicial  attachment,  155. 

Goods  taken  on  a  judicial  attachment  and  not  replevied  may  be  sold  on  final  judgment,  155. 

On  return  of  sherifi"  that  defendant  is  not  an  inhabitant  of  his  but   some   other  county,  an   alias 
shall  issue  to  the  county  where  defendant  resides,  155. 

Times  at  which  the  sheriff  shall  not  execute  civil  process,  155. 

If  there  be  in  any  county  no  proper  officer  to  execute  process,  or  he  refuse  to  do  so,  any  judge  may 
direct  the  sheriff  of  an  adjoining  county  to  execute  the  same,  156. 

Additional  compensation  to  sheriffs  for  executing  process  out  of  their  county,  156. 

Sheriff  failing  to  execute  and  return  process,  to  forfeit  one  hundred  dollars  and  be  also  liable  to  in- 
dictment, 156. 

Rules  of  court,  157. 


I 


648  INDEX. 

COURTS,  COUNTY  AND  SUPERIOR,  (Continued.) 

Declaration  to  be  filed  within  the  three  first  days  of  the  term  or  the  suit  to  be  dismissed,  157. 

Defendant  to  appear  and  plead  or  demur  at  the  same  term,  157. 

When  special  pleading  required,  the  time  may  be  enlarged,  157. 

Writ  of  inquiry  as  to  the  value  of  foreign  currency,  to  be  executed  at  the  same  term  with  the  judg- 
ment, 157. 

Plaintifi'to  reply  or  demur  at  the  same  term,  157. 

Other  pleas  to  be  filed  and  issues  made  up  at  the  same  term,  157. 

Time  may  be  allowed  to  argue  demurrer,  bill  of   exceptions,  &c.,  157. 

Parties  may  enter  their  own  pleas,  157. 

Clerk  to  enter  proceedings  of  court  in  a  well  bound  book,  157. 

Jury  causes  to  be  first  tried,  157. 

Motions  in  arrest  of  judgment,  when  to  be  argued,  157. 

Argument  causes,  when  to  be  argued,  157. 

No  plea  in  abatement  to  be  received  but  on  affidavit  or  proof,  158. 

When  plea  in  abatement  is  overruled,  plaintifi"  shall  recover  costs,  158. 

As  many  pleas  as  may  be  thought  necessary  may  be  pleaded,  153. 

A  plea  since  the  last  continuance  not  to  be  a  waiver  of  former  pleas,  158. 

All  issues  to  be  tried  at  the  succeeding  term  after  being  made  up,  l58. 

No  cause  to  be  continued  but  by  consent  of  parties,  or  on  affidavit,  158. 

Court  may  order  a  party  continuing  to  pay  costs,  158. 

Not  more  than  one  attorney  to  speak  in  any  cause,  158. 

Attorney  appearing  in  any  cause  to  produce  and  file  a  power  of  attorney,  if  required,  153. 

When  necessary  for  the  attorney  to  retain  the  power,  what  to  be  done,  158. 

No  attorney  to  enter  an  appearance  until  the  power  is  produced,  if  required,  158. 

In  actions  upon  penal  bonds,  &c.  plaintiff  may  assign  as  many  breaches  as  he  thinks  fit,  159. 

If  judgment  be  given  for  the  plaintiff  on  demurrer,  &c.  he  may  suggest  as  many  breaches  on  the  roll 
as  he  thinks  fit,  159. 

Defendant  may  pay  damages  and  costs  into  court,  and  if  so,  no  execution  shall  issue,  159. 

Judgment  shall  continue  and  be  a  security  for  further  breaches,  159. 

PlaintifTmay  have  sd.  fa.  upon  such  judgment,  159. 

Rules  for  taking  testimony  and  summoning  witnesses,  160. 

SubpcEna  for  witnesses,  how  to  issue,  160. 

Subpcena  returnable  immediately,  when  to  issue,  160. 

How  subpoena  may  be  served,  160. 

Witnesses  to  attend  from  term  to  term,  till  discharged,  160. 

Penalty  on  witnesses  for  non-attendanee,  1 60. 

Witnesses  entitled  to  pay,  if  they  attend  after  the  suit  is  settled  in  vacation,  unless  notified,  160. 

Witness  swearing  falsely  to  obtaui  a  ticket,  guilty  of  perjury,  161. 

How  witnesses  shall  be  exonerated  from  forfeiture  and  costs  for  non-attendance,  161. 

In  what  cases  depositions  of  witnesses  may  be  taken,  161. 

Clerk  to  pass  upon  all  depositions,  161. 

Notice  to  be  given  to  the  adverse  party,  of  the  time  and  place  of  taking  depositions,  161. 

When  depositions  of  witnesses  may  be  taken  before  cause  is  put  at  issue,  162. 

Witnesses  refusing  to  give  testimony  in  court  or  before  commissioners,  to  be  committed,  162. 

During  their  attendance,  to  be  exempt  from  the  service  of  all  civil  process  except  subpcpnas,   162. 

Pay  of  witnesses  for  their  attendance,  162. 

After  the  removal  of  a  cause,  subpoenas  and  commissions  to  take  testimony  may  be  issued  from 
either  court,  162. 

Witnesses  to  prove  their  attendance  at  each  court,  163- 

How  witness  may  recover  his  pay  for  attendance,  163. 

Witness  ticket  to  be  filed  with  the  clerk  to  be  taxed  in  the  bill  of  costs,  163. 

Costs  of  publication  and  postage  of  letters  covering  process,  to  be  taxed,  163. 

SubpcEnas  for  witnesses  to  attend  commissioners,  how  to  be  issued,  1 63. 

Pay  of  witnesses  for  attending  commissioners,  &c.,  163. 

The  party  in  whose  favor  judgment  is  given,  to  recover  full  costs,  163. 

Defendant  may,  in  certain  cases,  plead  a  set-off  or  give  it  in  evidence  under  the  general  issue  on  no- 
tice to  the  plaintiff,  164. 

Testimony  of  colored  persons  incompetent  against  white  persons,  164. 


INDEX.  649 


COURTS,  COUNTY  AND  SUPERIOR,  (Continued.) 
Admissible  against  each  other,  164, 
When  in  slander  and  assault  and  battery,  the  plaintiff  shall  not  recover  more  costs  than  damages, 

164. 
In  trespass  quare  clausum  freg'it,  defendant  may  disclaim  and  plead  tender,  &c.,  164. 
If  the  jury  find  the  trespass  involuntary  and  the  tender  in  favor  of  defendant,  plaintiff  shall  be 

barred,  164. 
In  actions  of  trespass,  &c.  if  there  be  more  than  one  defendant,  and  one  or  more  be  acquitted,  the 

persons  so  acquitted  shall  recover  full  costs,  unless  the  judge  certifies,  &.C.,  164. 
In  what  case  a  subpwna  duces  tecum-  may  issue,  165. 
Court  may  order  either  party  to  produce  books  or  papers,  165. 
Consequences  of  a  refusal  to  produce,  165. 

In  petitions  for  dower  or  partition  the  costs  at  the  discretion  of  the  court,  165. 
Action  may  be  brought  against  the  maker  of  a  bill,  &c.  jointly  with  the  endorsers,  or  against  all  or 

any  one  of  them,  1 C5 . 
On  joint  obligations,  &c.  of  copartners,  &c.  action  may  be  brought  against  all  or  any  one  or  more, 

165. 
Joint  obligations  shall  survive  against  heirs,  executors,  &c.  of  deceased  obligor,  166. 
How  judgment  is  to  be  entered  when  the  suit  is  against  the  executor,  &c.  of  deceased  obligor  and 

the  survivor,  166. 
When  more  actions  than  one  are  brought  on  a  promissory  note,  &c.  court  may  consolidate  them, 

166. 
Judgment  bonds,  &c.  void  as  to  power  to  enter  judgment,  but  good  as  common  bonds,  &c.,  166. 
Where  a  defendant  to  a  suit  in  the  county  court  removes  himself  or  his  property,  the  clerk  may  issue 

an  execution  to  any  county,  166. 
In  actions  for  money  due  by  contract,  except  penal  bonds,  jury  must  distinguish  between  principal 

and  interest ;  and  the  judgment  for  principal  shall  carry  interest,  166. 
In  action  on  single  bill,  &c.  if  defendant  make  no  defence,  clerk  may  calculate  interest,  without  a 

writ  of  inquiry,  167. 
Petitions  may  be  filed  in  vacation,  167. 

Clerk  to  issue  capias  upon  petition  making  affidavit  of  the  amount  of  his  demand,  167. 
When  a  petition  is  served  on  one  of  several  defendants  and  the  others  reside  out  of  the  State,  the 

court  shall  order  publication  for  five  weeks,  1 67 . 
Court  may  order  the  clerk  to  audit  and  settle  accounts,  167. 
Any  two  justices  may  take  depositions  to  be  read  on  petitions,  163. 
Fees  of  clerk  on  petitions,  168. 
Infants  may  sue  by  their  next  friend,  168. 

Either  party  to  a  suit  may  tender  to  the  judge  a  bill  of  exceptions,  168. 
Judge  to  sign  and  seal  the  same,  or  if  he  refuse  some  other  person  present  may  sign  and  seal  it, 

168. 
Actions  of  account  may  be  brought  against  the  executors  and  administrators  of  guardians,  &c.,  168. 
If  an  action  for  any  penalty  be  brought  in  good  faith  and  defendant  plead  a  former  judgment,  plain- 
tiff may  reply  fraud,  &c.,  168. 
In  an  action  of  debt  on  a  bond,  &c.  payment  may  be  pleaded,  169. 
In  an  action  of  debt  on  a  bond  with  a  penalty,  if  defendant  bring  into  court  the  principal,  interest  and 

costs,  the  bond  shall  be  deemed  discharged,  &c.,  169. 
Judgment  of  a  court  to  stand  till  reversed,  169. 
Upon  an  appeal  by  defendant  from  a  justice's  judgment  or  recordari  obtained  by  a  defendant,  court 

may  compel  plaintiff  to  give  security  for  costs,  169. 
Appeals  from  a  justice  to  be  tried  the  first  term  of  the  county  court,  170. 
Party  cast  to  pay  all  costs,  170. 
If  plaintiff  appeal  from  a  judgment  in  his  favor  by  a  justice,  it  shall  be  at  his  costs  unless  sufficient 

cause  for  such  appeal  be  shown,  170. 
Appeals  from  the  county  to  the  superior  court,  how  to  be  tried,  170. 
The  increasing  day  in  leap  year,  how  to  be  counted,  170. 

No  execution  to  issue  on  a  judgment  after  a  year  and  a  day,  without  a  scire  facias  to  revive,  170. 
Plaintiff  shall  not  be  nonsuited  after  verdict,  170. 

Party  committed  on  execution  not  to  be  discharged  on  habeas  corpus,  170. 
The  death  of  either  party  between  verdict  and  judgment-shall  not  be  assigned  for  error,  171. 

VOL.   I.  S2 


650 


INDEX. 


COURTS,  COUNTY  AND  SUPERIOR,  (Continued.) 

Administrator  rfe  bonis  non  may  have  execution  on  judgment  obtained  by  former  administrator,  171. 

In  suits  upon  the  bonds  of  administrators,  &c.,  on  motion  at  the  appearance  term,  a  reference  may 
be  had  to  have  an  account  stated,  171. 

Any  cause  in  the  superior  court,  either  civil  or  criminal,  may  be  removed  on  affidavit  to  an  adjoin- 
ing county  for  trial,  171. 

The  parties  to  any  suit  may  remove  the  same  to  a  convenient  county  by  consent,  171. 

On  the  removal  of  a  cause,  the  clerk  to  send  a  transcript  together  with  the  depositions,  &,c.  filed 
therein,  172. 

Cause  to  be  removed  on  affidavit  not  more  than  twice,  172. 

In  suits  involving  questions  of  boundary,  the  court  may  order  a  survey,  172. 

Proceedings  thereupon,  172 

Clerk  not  to  affix  the  seal  of  the  court  to  process  to  be  executed  within  the  county,  172. 

Sheriff  to  serve  all  notices  that  may  be  necessary  in  any  proceeding  in  law  or  equity,  172. 

How  such  notices  to  be  served.  173. 

Penalty  on  officer  for  failing  to  serve  notice  or  making  a  false  return,  173. 

Notice  may  be  given  and  proved  as  heretofore,  173. 

The  return  of  a  sheriff  on  a  scire  facias  that  he  has  executed  the   same,  sufficient  evidence  of  a 
service,  173. 

Defendants  on  trial  may  show  that  they  are  sureties,  and  the  jury  or  justice  to  discriminate  the  prin- 
cipal from  the  sureties,  173. 

In  such  case  the  officer  shall  levy  first  on  the  property  of  the  principal,  173. 

Property  of  the  principal  shall  be  first  sold,  173. 

A  judgment  for  costs  may  be  given  against  the  plaintiff,  and  the  sureties  to  his  prosecution  bond, 
upon  his  failing  to  prosecute  with  success,  174. 

Defendant,  against  whom  judgment  is  rendered,  may  pay  the  money  to  the  clerk  before  the  execu- 
tion issues,  174. 

Clerk  to  pay  over  the  same  to  the  party  entitled  to  receive  it,  174. 

Judge,  how  to  deliver  his  charge  to  the  jury,  174. 

Quakers  may  wear  their  hats  in  court,  174. 

County  courts  to  bind  out  orphan  children,  67. 

In  what  cases  county  courts  may  bind  out  free  persons  of  color,  63,  589. 

County  courts  to  lay  taxes  for  county  purposes,  123. 

may  make  allowances  to  certain  officers  for  extra  services,  126. 
may  lay  taxes  for  the  payment  of  the  patrol,  126. 
may  lay  taxes  for  the  payment  of  jurors,  126. 

Power  of  the  county  courts  in  disposing  of  the  county  funds,  127. 

County  court  may  appoint  a  committee  of  finance,  127. 

County  courts  may  lay  a  tax  for  keeping  court  houses,  prisons  and  stocks  in  repair,  132. 

to  lay  taxes  for  the  support  of  the  poor,  on  the  application  of  the  wardens,  473. 

Such  courts  may  also  lay  taxes  for  the  erection  of  poor  houses,  474. 

For  powers  of  the  county  courts  in  ordering  the  laying  out  of  roads,  settling  ferries  and  building 
bridges,  see  Roads,  Ferries  and  Bridges. 
COURTS  OF  EQUITY. 

Each  superior  court  of  law  shall  also  be  a  court  of  equity,  176. 

Style  of  the  court,  176. 

Clerk  and  master  to  be  appointed,  108,  176. 

Rules  of  court,  176. 

Plaintiff  may  file  bis  bill  in  term  time  or  in  vacation,  176. 

When  the  plaintifi  states  his  debt  or  damages  on  oath,  a  capias  may  issue  to  take  the  body  of  the 
defendant,  177. 

Form  of  the  writ,  177. 

Officer  executing  it  liable  as  special  bail  for  taking  an  insufficient  bond,  or  failing  to  take  any  bond, 
177. 

No  capias  to  issue  against  an  executor,  administrator  or  heir,  177. 

Penalty  on  executor,  &c.  for  not  appearing,  177. 

How  to  proceed  when  there  are  two  or  more  defendants,  177. 


INDEX.  651 

COURTS  OP  EQUITY,  (Continued.) 

Co-pY  of  the  bill  and  subpcena  to  be  served  on  defendant  ten  days  before  return  court,  or  the  suit  to 
be  abated,  173. 

Defendant  to  plead,  answer  or  demur  at  the  return  term,  or  the  bill  to  be  taken  pro  conjesso,  178. 

Defendant  may  show  cause  within  the  three  first  days  of  the  ensuing  term,  and  then  the  order  set 
aside,  178. 

Court  may  allow  such  time  for  pleadings  as  they  may  think  proper,  178. 

When  the  defendant  cannot  be  found  or  resides  out  of  the  State,  court  may  order  publication  to  be 
made,  173. 

Publication,  how  to  be  made,  178. 

On  publication  being  made,  court  may  grant  plaintiff  a  decree,  unless  defendant  appear  and  plead, 
&c.,  179. 

Plaintiff,  in  ease  of  such  decree,  to  give  security  as  the  court  may  order,  179. 

If  such  decree  be  against  a  person  residing  out  of  the  State,  a  copy  of  it  must  be  served  on  sach  per- 
son, if,  within  two  years  after  the  decree,  he  comes  into  the  State,  179. 

If  such  defendant  dies  within  two  years,  a  copy  to  be  served  on  his  real  or  personal  representatives, 
179. 

Decree  to  be  absolute,  if  no  petition  for  rehearing  within  twelve  months  after  copy  served,  179. 

Defendant  may  petition  for  rehearing  within  twelve  months  from  service  of  a  copy,  or  within  three 
years,  when  no  copy  served,  and  upon  paying  or  giving  security  for  the  costs,  may  answer  the 
bill,  &c.,  180. 

Decree  in  such  case  to  be  final,  if  no  petition  for  rehearing  is  filed  within  three  years,  180. 

Such  decree  not  to  be  made  against  a  person  residing  out  of  the  State,  unless  the  bill  is  founded  on 
transactions  which  took  place  in  this  State,  180.    ■ 

Commissions  to  take  testimony  may  be  directed  to  any  two  justices  of  the  peace,  180. 

Twenty  days'  notice  to  be  given,  unless  a  longer  or  shorter  time  is  ordered  by  the  court,  180. 

Commissions  may  also  issue  to  take  the  answer,  &c.  of  the  defendant,  181. 

Judge  may  issue  such  commissions  in  vacation,  or  may  himself  examine  testimony,  &c.,  181. 
may  also  grant  injunctions  and  issue  writs  of  Tie  exeat,  181. 

Court  may  direct  the  trial  of  such  issues  as  it  thinks  necessary,  181. 

Court's  power  as  to  costs,  as  to  requiring  security  from  the  defendant,  and  as  to  issuing  process  to 
enforce  its  decrees,  181 . 

Sheriffs  to  serve  notices  issuing  from  clerks  and  tnasters,  181- 

Executions  may  issue  as  at  law  and  have  the  like  binding  effect,  181. 

Decree  for  the  costs  of  the  defendant  may  be  made  against  the  surety  for  the  prosecution  as  well  as 
against  the  principal,  181. 

On  defendant's  death  after  service,  a  sci.fa.  may  issue  to  make  his  representatives  parties,  182. 

When  plaintiff  dies,  his  representatives  may  make  themselves  parties  within  two  terms  there- 
after, 182. 

No  bill,  answer,  &c.  to  be  enrolled,  till  final  decree,  182. 

Court  to  direct  what  papers  to  be  enrolled,  182, 

No  injunction  to  stay  an  execution  shall  issue  for  a  greater  sum  than  plaintiff  swears  to  be  just,  nor 
until  after  security  given,  182. 

No  injunction  to  issue  after  four  months  from  the  judgment  at  law  except  in  certain  cases,  182. 

Injunction  bonds,  after  dissolution  of  injunction,  to  be  proceeded  on  like  appeal  bonds,  162. 

On  what  terms  injunctions  to  stay  executions  on  behalf  of  the  State  will  be  allowed,  183. 

Court  to  appoint  a  guardian  for  an  infant,  or  non  compos  defendant,  residing  out  of  the  State,  183. 

Such  infant,  «fcc.  to  have  three  years  after  the  decree,  &c.  to  appear  in  court,  &c.,  183. 

Any  cause  may,  after  it  is  set  for  heari.ig,  he  removed  to  the  supreme  court,  183. 

Time  within  which  bills  of  review  and  petitions  for  rehearing  will  lie  or  be  allowed,  133. 

Clerk  and  master  to  make  title  to  property  sold  under  an  order  of  the  court,  when  the  court  so 
directs,  183. 

Infant  trustees  to  convey  under  the  direction  of  a  court  of  equity,  234. 

Power  of  the  court  of  equity  in  relation  to  orphans  and  their  estates,  not  to  be  abridged  by  the  powers 
given  to  the  county  and  superior  courts,  313,  370. 

A  court  of  equity  may  direct  a  sale  of  the  real  or  personal  estate  of  infants,  if  such  sale  would  pro- 
mote the  interest  of  the  infants,  313. 

Manner  in  which  such  sale  shall  be  made,  and  how  the  proceeds  shall  be  applied  and  secured,  314. 


652  INDEX. 

COURTS  OF  EQUITY,  (Continued.) 

For  what  purpose,  and  in  what  manner,  a  court  of  equity  may  order  a  sale  of  the  real  estate  of  an 

idiot  or  lunatic — Provisos,  319. 
Court  of  equity  may  order  a  sale,  where  the  idiot  or  lunatic's  land  is  wanted  for  public  purposes — ■ 

Proviso,  320. 
Court  of  equity  may  order  a  sale  of  real  estate  for  division,  when  it  cannot  be  divided  otherwise 

without  prejudice  to  the  parties,  452. 
Court  of  equity  may  order  a  sale  of  real  estate  required  for  public  purposes,  upon  the  petition  of  the 

tenants  in  common,  452. 
Where  the  sale  shall  be  made,  452. 
The  deed  of  the  clerk  and  master  shall  convey  title,  452. 

Where  there  is  dower  on  the  land,  the  court  may  decree  a  sale,  and  apportion  the  dower  interest,  453. 
COURT,  SUPREME. 

Three  judges  of  the  supreme  court  to  be  appointed  by  the  General  Assembly,  184. 

Supreme  court  to  be  holden  in  Raleigh  twice  in  each  year,  on  the  second  Monday  of  June  and  last 

Monday  of  December,  1S5. 
Clerk's  office  to  be  always  kept  in  Raleigh,  185. 
Judges  to  take  oaths  before  acting,  185. 
Form  of  the  official  oath  of  the  judges,  433. 
Incase  of  sickness,  &c.  two  judges  may  hold  the  court,  185. 
A  chief  justice  to  be  chosen  by  the  judges,  185. 
Powers  and  authorities  of  the  judges,  185. 
Power  and  jurisdiction  of  the  court,  185. 
How  executions  to  issue  and  be  returnable,  186. 

How  the  decisions  of  the  court  to  be  transmitted  to  the  court  below,  186. 
Judges  to  appoint  a  clerk,  who  shall  give  bond  with  security  and  take  oath  of  office,  186. 
Clerk  to  record  bills,  &c.  and  such  other  parts  of  the  proceedings  as  the  court  shall  direct,  186. 
Clerk's  pay  for  such  services,  186. 

Judges  to  prescribe  rules  of  practice  for  the  superior  courts,  186- 
Upon  appeals  from  interlocutory  judgments  or  decrees,  what  judgment  the  supreme  court  shall  give 

and  how  it  shall  be  certified,  187. 
Exhibits  in  equity  cases  in  the  supreme  court  may  be  proved  there  by  witnesses,  187, 
Rules  as  to  such  witnesses,  187. 
Judges  to  deliver  their  opinions  in  writing,  187. 

Clerk  not  to  give  a  certificate  nor  to  issue  executioUj  till  the  opinion  is  filed,  187. 
Power  of  the  court  to  amend  proceedings,  187. 
May  allow  the  taking  of  further  testimony,  187. 
Clerks  to  transmit  to  the  courts  below  certificates  of  decisions,  187. 
Execution  for  costs,  how  issued,  187. 
Judges  shall  annually  appoint  a  reporter,  187. 
His  duties  and  compensation,  187. 

When  the  clerk  shall  perform  the  duties  of  reporter,  187. 
His  compensation  therefor,  187. 

The  sheriff"  of  Wake  to  attend  the  supreme  court,  188. 
Judges  of  the  supreme  court  to  license  attorneys  at  law,  81. 
Informations  against  corporations  maybe  filed  in  the  supreme  court,  120. 
How  the  supreme  court  may  proceed  to  ascertain  facts  in  such  cases,  120. 
Supreme  court  to  have  original  jurisdiction  in  suits  by  the  State  to  repeal  letters  patent,  256. 
Salaries  of  the  judges  of  the  supreme  court,  what  and  when  to  be  paid,  548,  549. 
Salary  of  the  clerk  of  the  supreme  court,  549. 
His  fees,  556. 
CREEKS.     See  Rivers  and  Creeks. 
CRIME  AGAINST  NATURE. 

Crime  against  nature  punishable  with  death,  192. 
CRIMES  AND  PUNISHMENTS. 

Benefit  of  clergy  taken  away  from  murder,  burglary,  arson,  and  robbery  on  the  highway,  191. 
And  from  the  accessories  to  those  crimes  before  the  fact,  191. 
Fighting  a  duel,  when  one  party  is  killed,  punishable  with  death,  191. 
Castration  with  malice  aforethought,  punishable  with  death,  191. 


INDEX.  653 

CRIMES  AND  PUNISHMENTS,  (Continued.) 

Rape,  or  carnally  knowing  any  female  under  ten  years  of  age,  punishable  with   death,  192. 

Crime  against  nature,  punishable  with  death,  192. 

Burning  a  public  building,  punishable  with  death,  192. 

Felony  punishable  with  death,  to  break  open  houses  in  the  day  time  and  steal  therefrom  to  the 

amount  of  two  dollars  and  upwards,  192. 
Killing  a  slave  homicide  as  at  common  law,  192. 
Stealing  slaves  punishable  with  death,  192. 

Concealing,  &c.  a  slave,  with  intent  to  remove  him  out  of  the  State,  punishable  with  death,  192. 
Taking  a  free  person  of  color  from  this  State  to  another  with  intent  to  sell  him,  punishable  with 
'\  death,  193. 

-*  Malicious  maiming,  how  punishable,  193. 

Bigamy,  what  shall  be  and  how  punishable,  193. 

not  to  be  applied  to  a  person,  whose  husband  or  wife  shall  have  been  absent  seven  years, 

without  knowledge  of  his  or  her  existence,  193. 
nor  to  those  who  have  been  divorced,  193. 
Horse  stealing,  how  punishable,  194. 
Burning  bridges,  194. 

Circulating  seditious  publications  among  slaves,  194. 
Endeavoring  to  excite  insurrection  among  slaves  bywords,  194. 
Servants  embezzling  their  master's  goods,  194. 
Breaking  prison,  when  a  capital  offence,  195. 
Forgery,  how  punishable,  195. 

Conviction  of  grand  larceny  to  make  the  offender  infamous,  195. 
Robbery  of  or  stealing  bank  notes,  &e.  how  punishable,  195. 
Stealing  growing  corn,  &c.  larceny,  196. 
Benefit  of  clergy  not  to  be  allowed  twice,  196. 
Clergiable  offences,  how  punished,  196. 

How  offenders  to  be  dealt  with  after  having  been  allowed  their  clergy,  196. 
Benefit  of  clergy  shall  not  release  from  an  offence  not  clergiable,  previously  committed,  197. 
Women  entitled  to  benefit  of  clergy,  197. 
Concealing  the  birth  of  a  bastard  child,  how  punishable,  197. 
Forfeiture  for  suicide  abolished,  197. 
Attempt  to  burn  a  public  building,  how  punishable,  197. 
Embezzling  records,  &c.,  how  punishable,  198 
Buying  and  selling  offices  prohibited,  and  how  punishable,  198. 
Jurors  taking  bribes,  and  those  who  bribe  them,  how  punishable,  199. 

Sheriff  or  other  officer,  wilfully  or  negligently  suffering  a  criminal  to  escape,  how  punishable,  199. 

Duty  of  the  attorney  general  and  solicitors  in  such  cases,  200. 

Breaking  up  an  election,  how  punishable,  200. 

Public  commissioners  becoming  contractors,  to  be  guilty  of  a  misdemeanor,  200. 

Overseers  of  roads  to  be  indicted  for  neglect  of  duty,  200. 

Owners  of  water  mills  indictable  for  not  keeping  up  bridges,  200. 

Persons  not  keeping  lawful  fences  indictable,  200. 

Trespasses  on  public  lands  indictable,  201. 

Punishment  of  vagrants,  201. 

Hawking  and  peddling  without  a  license,  how  punishable,  202. 

Fornication  and  adultery,  202. 

Marrj-ing  a  female  under  fifteen,  without  the  written  consent  of  her  father,  indictable,  202. 

Unlawful  maiming  without  malice,  how  punishable,  202. 

Sending,  accepting  or  bearing  a  challenge  to  fight  a  duel,  how  punishable,  202. 

Perjury,  203. 

Subornation  of  perjury,  203. 

Proviso  as  to  cutting  off  ears,  203. 

Accessories  to  felonies,  how  punishable  in  certain  cases,  203. 

Receivers  of  stolen  goods,  &c.,  how  punishable,  204. 

Altering  the  mark  or  mismarking  cattle,  &c.,  204. 

Holding  out  false  lights  on  the  sea  coast,  204. 

Counterfeiting  gold  or  silver  coins,  204. 


654 


INDEX. 


CRIMES  AND  PUNISHMENTS,  (Conlinued.) 

Having  in  possession  instruments  for  counterfeiting,  204. 

Counterfeiting  bank  notes,  &c.,  205. 

Passing  or  attempting  to  pass  counterfeit  notes,  &c.,  205. 

Cheating  by  false  tokens,  205. 

Punishment  for  carrying  on  lotteries,  206. 

For  selling  tickets,  &c.  in  lotteries,  206. 

Gaming  tables  prohibited,  206. 

Justices,  &c.  directed  to  destroy  them,  206. 

Penalty  for  keeping  them  up,  206. 

Billiard  and  backgammon  tables  excepted,  207. 

Money  staked  for  betting  may  be  seized,  207. 

Penalty  for  opposing  the  destruction  of  the  tables  or  the  seizure  of  the  money,  207. 

Penalty  for  suffering  gaming  tables  in  one's  house,  207. 

Sheriff  to  sue  for  the  penalty,  207. 

To  keep  gaming  tables  or  to  play  at  them  indictable,  208. 

Persons  playing  cards  in  a  public  house  indictable,  208. 

Tavern  keepers  and  retailers  of  spirituous  liquors  indictable  for  suffering  gaming  in  their  houses,  208. 

Stealing  or  selling  free  negroes  in  this  State,  how  punishable,  208. 

The  clerk  who  issues  a  license  for  the  marriage  of  a  free  negro,  &c.  with  a  white  person,  and  the 

justice,  &c.  who  marries  such  persons,  subject  to  indictment,  208. 
Harboring  runaway  slaves,  how  punishable,  209. 

Teaching  slaves  to  read  or  write,  the  use  of  figures  excepted,  indictable,  209.  , 

Penalty  for  trading  with  slaves  for  certain  articles,  209. 

Proviso  that  such  trading  may  be  in  the  day  time  and  with  the  written  permit  of  the  master,  209. 
Proviso  not  to  extend  to  spirituous  liquors,  fire  arms,  powder,  shot  or  lead,  210. 
Penalty  on  masters  of  vessels  f  r  entertaining  slaves  and  free  persons  of  color  on  board  their  vessels 

at  certain  times  without  a  written  permit,  210. 
Trading  with  slaves  indictable,  210. 
What  circumstances  shall  be  taken  as  presumptive  evidence  of  such  trading  against  the  owners  of 

stores  and  shops,  210. 
Penally  for  fraudulently  giving  to  a  slave  a  written  permit  to  trade,  210. 
Appeals  allov>red  in  cases  of  prosecutions  and  indictments  for  trading  with  slaves,  211. 
Retailing  spirituous  liquors  by  the  small  measure,  without  a  license,  indictable,  211. 
Sheriff  to  furnish  county  attorney  with  a  list  of  those  having  licenses  to  retail,  to  be  laid  before  the 

grand  jury,  211. 
Hunting  in  the  woods  with  a  gun  by  firelight  indictable,  211. 
Persons  sending  their  slaves  into  the  woods  so  to  hunt,  how  punishable,  212. 
An  accomplice  in  fire  hunting,  giving  evidence  against  his  fellow,  to  be  discharged,  212. 
Penalty  on  any  person  or  corporation  for  issuing  due  bills,  212. 
For  passing  or  receiving  due  bills,  212. 

For  passing  or  receiving  a  check  on  any  bank  for  a  sum  less  than  one  dollar,  213. 
These  offences  also  indictable,  213. 
Any  person  or  corporation  issuing  notes  to  pass  for  money  without  being  authorized  by  law  so  to  do, 

indictable  and  how  punishable,  213- 
Fines  and  penalties  for  these  offences,  how  appropriated,  213. 
Forcible  entry  punishable  by  indictment,  285. 
Millers  indictable  for  keeping  false  measures  in  their  mills,  422. 
For  the  crimes  and  punishments  of  slaves  and  free  persons  of  color,  see  Slaves  and  Free  Persons 

of  Color. 
Stealing  or  embezzling  wrecked  property  to  be  larceny,  629. 
CRIMINAL  PROCEEDINGS. 

Duty  of  magistrates  in  committing  criminals,  215. 

Duty  of  sheriffs  and  other  officers  in  arresting  felons,  215. 

No  person  to  be  imprisoned  but  in  the  common  jail,  215. 

Governor  may  employ  an  agent  or  offer  a  reward  for  the  apprehension  of  fugitives  from  this  State 

charged  with  capital  offences,  215. 
Judges  or  any  two  justices  may  commit  fugitives  from  other  states,  charged  with  certain   criminal 

offences,  216. 


<-->■. 


INDEX.  655 

CRIMINAL  PROCEEDINGS,  (Continued.) 

No  person  to  be  arrested  on  a  presentment  before  indictment  found,  216. 

Name  of  the  grand  jurors  giving  information  or  of  the  witness  to  be  endorsed  on  a  presentrnf-at, 
216. 

Indictments  for  misdemeanors,  with  certain  exceptions,  must  he  commenced  within  two  years,  216. 

Proviso  when  the  judgment  is  arrested  or  a  nolle  prosequi  entered,  216. 

When  criminal  process  may  issue  and  be  returnable,  217. 

Criminal  proceedings  to  be  as  heretofore  in  use,  217. 

Sheriffs  to  take  bail,  when  the  offence  is  bailalile,  217. 

Persons  accused  entitled  to  counsel,  217. 

No  indictment  to  be  quashed  or  judgment  arrested  for  merely  formal  objections,  217.  '  * 

In  an  indictment  for  a  libel  the  defendant  may  give  the  truth  in  evidence,  217. 

When  an  assault  is  in  one  county  and  the  death  in   another,  the  offender  may  be  tried  where  the 
assault  was  made,  217. 

When  an  assault  is  made  in  this  State  and  the  death  is   out  of  it,  the  offender  may  be  tried  in  this 
State,  21S. 

Plea  to  be  entered  for  a  defendant  when  he  stands  mute  on  a  criminal  charge,  218. 

In  capital  cases  the  judge  may  issue  a  special  venire  facias,  218. 

Penalty  on  the  sheriff  for  not  executing  it,  and  on  the  jurors  for  not  attending,  218. 

In  capilal  cases  the  defendant  may  challenge  thirtyfive  jurors,  in  others  four,  and   may  have   the 
assistance  of  counsel  in  making  such  challenges,  218. 

In  capital  cases  the  State's  counsel  may  challenge  four  jurors  peremptorily,  218. 

Peremptory  challenges  beyond  the  number  allowed  by  law,  void,  219. 

On  conviction  of  a  felon  ibr  robbing  or  stealing  goods,  &c.  the  goods  shall  be  restored,  219. 

Court  may  in  certain  cases,  direct  the  prosecutor  to  pay  costs,  219. 

New  trial  may  be  granted  by  the  court  when  the  defendant  is  convicted,  219. 

Special  days  to  be  appointed  for  the  trial  of  State  cases,  of  which  the  clerk   must  give  notice,  and 
issue  subpoenas,  &c.  accordingly,  219. 

How  the  petit  jurors  shall  be  sworn  in  cases  not  capital,  220. 

Pay  of  witnesses  in  State  cases  and  how  they  shall  be  paid,  220. 

Judges  of  the  superior  courts  may  mitigate  recognizances,  both  before  and  after  judgment,  220. 

Clerks  to  refund  when  the  remitted  forfeiture  has  been  paid,  220. 

County  trustee  to  refund  when  such  remitted  forfeiture  has  been  paid  over  to  him,  220. 

County  courts  may  remit  fines  ;  and  also  forfeitures  before  judgment,  221. 

Appeals  allowed  on  judgments  on  forfeited  recognizances,  221. 

No  execution  to  issue  on  a  forfeited  recognizance,  &c.  until  after  a  scire  facias,  221. 

Clerks  to  issue  a  joint  sci.fa.  against  the  principal  and  his  sureties  on  a  recognizance,  221- 

How  such  sci.fa.  to  be  executed,  221. 

Such  sci.fa.  to  be  entered  as  one  suit  against  the  principal  and  his  sureties,  222. 

One  set  of  costs  only  to  be  collected  except  when  the  defendants  plead  separately,  222. 

Every  man  entitled  to  be  informed  of  the  accusation  against  him,  to  contront  his  accusers  and  wit- 
nesses, and  not  to  give  evidence  against  himself,  7. 

No  freeman  to  be  made  to  answer  but   by  indictment,  presentment  or  impeachment,  7. 

No  freeman  to  be  convicted  of  any  crime  but  by  the  unanimous  verdict  of  a  jury,  7. 

When  persons  committed  for  treason  or  felony  shall  be  entitled  to  a  trial  or  discharge,  316. 

For  criminal  proceedings  in  regard  to  slaves  and  free  persons  of   color,  see  Slaves  and  Free  Per- 
sons of  Color. 
CURRENCY. 

The  currency  of  the  United  States  recognized  as  the  currency  of  this  State,  222. 

Records  and  all  other  papers  and  proceedings  to  be  kept  in  dollars  and  cents,  222. 

Fee  bills  to  be  made  out  in  dollars  and  cents — Receipts  to  be  given  in  the  same,  560. 
DEBTORS.     See  Insolvent  Debtors. 

Persons  removing  debtors  to  hinder,  delay  or  defraud  creditors,  to  be  liable  for  their  debts,  290. 
DEEDS  AND  CONVEYANCES. 

Deeds,  &c.  for  land  to  be  proved  or  acknowledged,  and   registered  in  the  county  where  the  lands 
lie,  224. 

Deeds  so  registered  to  pass  land  without  livery,  &c.,  224. 

Copy  of  a  deed  from  the  register's  office  good  evidence  when  the  original  is  lost,  224. 

Grantees  may  have  witnesses  summoned  to  prove  their  deeds,  224. 


656  INDEX. 

DEEDS  AND  CONVEYANCES,  (Continued.} 

County  court  may  issue  a  commission  to  take  probate  when  the  witnesses  or  grantors  are  out  of  the 
State,  224,225. 

How  deeds,  powers  of  attorney,  &c.  executed  out  of  the  State,  but  within  the  United  States,  may  be 
proved  and  registered.  225. 

How  proved  and  registered  when  made  in  foreign  countries,  226. 

Further  provisions  for  the  probate  and  registration  of  such  deeds,  &c.,  226. 
•     County  court  may  issue  a  commission  to  foreign  parts  to  take  probate,  &c.,226,  227. 

How  deeds  executed  by  husband  and  wife  shall  be  proved  or  acknowledged  and  registered,  227. 

Provision  when  the  wife  is  sick,  or  a  resident  of  another  county,  227. 

Form  of  the  commission  to  take  the  private  examination  of  a^eme  covert,  227,  228. 

Conveyance  under  a  power  of  attorney  from  husband  and  wife,  valid  to  pass  lands,  228. 

How  deeds  and  powers  of  attorney  from  husband  and  wife,  living  out  of  this  State  but  in  the  United 
States,  may  be  proved,  &c.  and  registered,  228,  229. 

How,  when  husband  and  wife  live  in  foreign  parts,  229. 

Powers  of  attorney  for  the  sale  of  lands,  how  to  be  proved,  &c.  and  registered,  229. 

Other  powers  of  attorney,  how  to  be  proved,  &c.  and  registered,  230. 

Gifts  of  slaves  must  be  in  writing,  attested  and  registered — Proviso  as  to  advancements  to  chil- 
dren, 230. 

Deeds  of  gift  to  be  proved  and  registered,  230. 

All  sales  of  slaves  must  be  in  writing,  attested  and  registered,  except  bona  fide  sales,  accompanied 
with  a  transfer  of  possession,  230,  231. 

All  written  transfers  of  slaves  must  be  registered  in  the  county  where  the  purchaser  resides,  unless 
the  seller  is  to  retain  possession,  &c.,  231. 

Such  transfers  of  slaves  to  be  proved  on  any  trial  by  the  subscribing  witnesses,  if  to  be  found,  231. 

Certain  limitations  of  slaves  by  deed  to  be  valid,  231. 

No  mortgage  or  deed  in  trust  good  against  creditors,  unless  registered  within  six  months,  231. 

Mortgage  or  deed  in  trust  good  against  creditors,  &c.  only  from  the  date  of  the  registration,  231. 

Clerks  of  the  county  courts  authorized  to  take  probate  of  mortgages  and  deeds  of  trust,  232. 

Register  to  endorse  on  each  mortgage,  &c.  the  day  he  received  it,  and  to  register  it  in  the  order  of 
delivery,  232. 

What  remedy  the  last  mortgagee  shall  have  when  there  is  more  than  one  mortgage  in  force  at  the 
same  time.  232. 

Where  an  action  is  brought  to  recover  money  secured  by  mortgage,  or  for  the  mortgaged  property, 
the  defendant  may  be  discharged  by  bringing  the  money  due  on  the  mortgage  into  court,  232. 

Proviso  where  the  defendant  denies  the  right  of  redemption,  &c.,  233. 

Marriage  settlements  to  be  proved  and  registered,  233. 

What  marriage  settlements  shall  be  good  against  creditors,  &c.,  233. 

Infant  trustees  or  mortgagees,  how  to  convey  lands,  234. 

Errors  in  the  registration  of  deeds,  «fec.,  how  to  be  corrected,  &c.,  234. 

Further  time  allowed  for  registering  deeds,  &c.,  235. 

Certain  contingent  limitations  in  deeds  or  wills,  how  construed,  259,  322. 

In  conveyances  to  uses,  the  possession  shall  be  transferred  to  the  use  without  livery  of  seizin,  259. 

Certified  copies  of  deeds  from  other  states  to  be  received  as  evidence,  263. 

Deeds  for  lands,  contracted  to  be  sold  by  deceased,  may  be  made  by  executors  and  administra- 
tors, 279. 

Clerks  to  deliver  deeds  and  pay  over  register's  fees  after  ten  days  from  the  rise  of  the  court,  501. 

Registers  to  call  upon  the  clerks  for  the  deeds,  &c.  within  twenty  days  from  the  rise  of  the 
court,  501. 

Penalty  on  registers  for  delay  in  registering  deeds,  &c.,  501. 

Registers  to  leave  deeds,  &c.  which  they  have  registered,  at  the  county  court,  502. 

County  courts  may  have  register's  books  transcribed,  and  copies  from  said  books  shall  be  evi- 
dence, &c.,  502. 
DEER.     See  Himiing. 

DELEGATES  TO  STATE  CONGRESS  IN  1776,  5. 
DEPOSITIONS. 

In  what  cases  depositions  of  witnesses  may  be  taken,  161. 

Clerk  to  pass  upon  all  depositions,  161. 

Notice  to  be  given  to  the  adverse  party  of  the  time  and  place  of  taking  depositions,  151. 


INDEX. 


657 


DEPOSITIONS,  (Continued.) 

Under  what  circumstances  depositions  of  witnesses  may  be  taken,  before  the  cause  is  put  to  issue, 

162. 
Witnesses  refusing  to  give  testimony  in  court  or  before  commissioners,  to  be  committed,  162. 
After  the  remoTal  of  a  cause,  subposnas  and   commissions  to  take  testimony  may  be  issued  from 

either  court,  162. 
Subpasnas  ior  witnesses  to  attend  commissioners,  &c.,  how  to  be  issued,  163. 
Pay  of  witnesses  for  attending  commissioners,  &c.,  163. 
Any  two  justices  may  take  depositions  to  be  read  on  petitions,  168. 
Depositions  may  be  taken  in  contested  elections  for  governor,  305. 
Depositions  of  witnesses,  when  allowed  to  be  read  on  a  trial  before  a  justice,  356. 
For  depositions  in  equity,  see  Courts  of  Equity. 
DESCENTS. 

Rules  of  descent,  236. 

Rule  1.  Lineal  descent,  236.  •,.       ,,         u-m  t>       • 

2.  Females  to  inherit  equally  with  males,  and  younger  with  older  children— Proviso  as  to  a 

child  advanced,  236» 

3  Lineal  descendants  to  represent  their  ancestors,  236. 

4  Collateral  descent  where  the  inheritance  has  been  transmitted  from  an  ancestor,  237. 

5'  Collateral  descent  where  the  inheritance  has  not  been  transmitted  from  an  ancestor,  237. 

6.  Collateral  relations  of  the  half  blood  to  inherit   equally  with  those  of  the  whole   blood- 
Proviso  where  a  parent  shall  take,  237. 

7.  No  person  to  take  unless  he  be  born  at  the  death  of  the  person  last  seized,  or  within  ten 

months  afterwards,  237. 
8    In  what  case  the  widow  shall  take  as  heir,  237. 

9'  Alien  heirs  not  to  prevent  other  relations,  being  citizens,  from  inheriting,  237. 
10!  Illegitimate  children  may  inherit  from  their  mother  and  from  each  other,  237. 
DEVISEES.    See  Lands  of  Deceased  Debtors. 
DEVISE.     See  IViUs  and  Testaments. 

DISTRIBUTIVE   SHARE.    See  Intestate's  Estute,  Petition. 
DIVORCE  AND  ALIMONY. 

Courts  of  law  and  equity  to  have  jurisdiction  of  divorce  and  alimony,  238. 

Cases  in  which  divorce  or  alimony  may  be  granted,  239. 

Other  cases  in  which  divorce  from  bed  and  board,  and  alimony  or  separate  maintenance,  may  be 

granted,  239. 
Alimony  may  be  granted  when  the  husband  is  a  spendthrift,  &c.,  239. 

Proceedings  to  obtain  divorce  or  alimony,  239.  •,    ,  •    .u    «,„♦„ 

Cause  of  complaint  must  have  existed  six  months,  and  petitioner  must  have  resided  in  the  State 

three  years — Proviso,  240. 
Rules  as  to  depositions  and  costs  in  such  eases,  240. 
What  shall  be  a  bar  to  a  suit  for  divorce,  for  the  cause  of  adultery,  240. 
What  decree  the  court  may  make  on  applications  for  divorce,  241. 
Innocent  party  may  marry  again,  241. 
No  decree  to  render  the  children  illegitimate,  241. 
Proceedings  against  the  husband  when  alimony  is  allowed,  241. 
In  case  of  divorce  from  bed  and  board,  the  wife  shall  have  all  the  property  she  may  thereafter  ac 

quire,  and  may  sue  and  be  sued  alone,  241. 
The  superior  courts  of  law  may,  on  petition  of  a  married  woman,  decreethat  the  property  she  may 

afterwards  acquire,  may  be  secured  to  her,  and  that  she  may  sue  and  be  sued  as  a  feme  sole, 

241 
Appeal  allowed  to  the  supreme  court  from  a  judgment  or  decree  in  superior  court  of  law,  or  the 

court  of  equity,  242. 
Party  against  whom  there  is  a  decree  of  divorce,  not  permitted  to  marry  again,  242. 

DOGS.    See  Mad  Dogs,  Towns. 

DOWER.    See  Widow.  . 

In  petitions  for  dower  or  partition,  the  costs  are  at  the  discretion  of  the  court,  1 60. 

In  a  petition  for  the  sale  of  land  for  partition,  if  there  be  dower  on  the  land,  the  court  may  decree 
a  sale  and  apportion  the  dower  interest,  452,453. 
DRAINING  LOW  LANDS. 

Mode  of  proceeding  by  those  desirous  of  draining  their  lands,  243. 

83 


658 


INDEX. 


DRAINING  LOW  LANDS,  (Continued.) 

Court  to  appoint  twelve  jurors — their  duty,  243. 

On  payment  of  damages,  title  of  land  to  vest,  &c.,  243. 

Jury  to  make  a  return  of  their  proceedings  to  court,  &c.,  243. 

Pay  of  such  jurors,  243. 

Yard  or  curtilage  of  any  proprietor  not  to  be  invaded,  nor  any  mill  pond  injured,  243.. 
DRUNKENNESS. 

Penalty  for  intoxication  or  disorderly  behavior  during  divine  service,  503. 

Penalty  for  getting  drunk,  608. 

Offence  must  be  prosecuted  in  ten  days,  60&. 
DUE  BILLS  AND  CHECKS. 

Penalty  on  any  person  or  corporation  for  issuing  due  bills,  212. 

Penalty  for  passing  or  receiving  due  bills,  212. 

Penalty  for  passing  or  receiving  a  check  on  any  bank  for  less  than  one  dollar,  213. 

The  issuing,  passing  or  receiving  due  bills,  or  the  passing  or  receiving   checks  on  anyhankfora 
sum  less  than  one  dollar,  to  be  indictable,  213. 

Any  person  or  corporation  issuing  notes  to  pass  for  money,  without  being  authorized  by  law  so  to 
do,  how  punishable,  2l3. 

Fines  and  penalties,  how  appropriated,  213. 
DUELLING. 

Fighting  a  duel,  when  one  party  is  killed,  punishable  with  death,  191. 

Sending,  accepting  or  bearing  a  challenge  to  fight  a  duel,  how  punishable,  202. 
DUNKARDS.     See  Quakers,  Moraviana,  Menonists  and  Dunkards. 

EJECTMENT. 

Action  of  ejectment  on  the  death  of  the  defendant  may  be  revived  against  his  heirs  or  devisees,  56. 

Court  may  appoint  guardians  for  infant  defendants  in  ejectment,  56. 

How  service  to  be  made  when  heir  or  devisees  are  out  of  the  State,  57. 

The  real  plaintiff  in  an  action  of  ejectment  to  give  a  prosecution  bond,  153. 

Persons  desiring  to  be  made  defendants  in  ejectment  must  give  a  bail  bond,  153. 

Where  plaintiff  in  ejectment  makes  affidavit  that  defendant  entered  as  his  tenant,  &c.  the  defendant 

shall  not  plead  until  he  gives  bond  for  the  costs  and  damages,  153. 
What  facts  in  such  case  the  jury  are  to  find,  154. 

If  they  find  for  the  plaintiff,  they  must  assess  damages  for  the  occupation,  &c.,  154. 
Defendant  may  rebut  plaintiflT's  affidavit  by  his  own,  154. 
If  plaintiff  does  not  give  security,  his  suit  to  be  dismissed,  154. 
Defendant  to  give  bail  or  be  in  custody  before  pleading,  154. 
ELECTIONS. 

Time  and  manner  of  holding  elections  for  electors  of  president  and  vice  president,  245. 

Certificate  and  return,  by  whom  to  be  made,  245. 

Penalty  in  case  of  failure  to  make  return,  245. 

Election  of  electors  to  be  held  every  four  years,  246. 

When  and  where  the  election  for  members  of  the  General  Assembly  shall  be  held,  293. 

The  county  courts  may  alter,  establish  or  discontinue  separate  places  of  election,  293. 

Time  and  place  of  holding  the  elections  to  be  advertised  by  the  sheriff,  293. 

County  courts  to  appoint  inspectors  for  every  separate  election  precinct,  293. 

Clerk  to  furnish  the  sheriff  with  a  list  of  the  inspectors,  and  the  sheriff  to  notify  them,  293. 

If  the  court  fail  to  appoint  inspectors,  or  they  refuse  to  act,  the  vacancies  how  to  be  supplied  294. 

Sheriff  to  furnish  boxes  for  receiving  the  tickets — Tickets  how  to  be  received  and  put  into  the 

boxes,  294. 
Persons  qualified  to  vote,  how  to  give  in  their  tickets,  294.  ^ 
List  of  voters  to  be  kept,  294. 

How  the  boxes  are  to  be  opened  and  the  tickets  counted  out,  294. 
Manner  in  which  the  statement  of  the  polls  shall  be  made  up,  returned,  compared,  and  the  persons 

declared  duly  elected,  294. 
Manner  in  which  the  statement  of  the  polls  shall  be  made  out  in  the  senatorial  districts,  295. 
Where  the  polls  of  the  different  counties  composing  the  district  shall  be  compared,  295. 
And  how  the  persons  elected  shall  be  so  declared,  295. 
Sheriffs'  pay  for  attending  to  compare  the  polls  in  the  senatorial  districts,  296. 


INDEX.  659 

ELECTIONS,  (Continued.) 

Persons  offering  to  vote,  may  be  required  to  swear  to  their  qualifications,  of  -which  the  inspectors 

shall  be  the  sole  judges,  296. 
In  case  of  vacancies  occurring  before  the  meeting  of  the  General  Assembly,  it  shall  be  the  duty  of 

the  sheriff  to  notify  the  governor  thereof,  296. 
Persons  elected,  and  refusing  to  accept,  or  resigning,  to  notify  the  governor,  296. 
Governor,  in  such  cases,  to  order  a  new  election,  297. 

Elections  held  under  a  writ  from  the  governor,  or  speaker  of  either  house,  to  be  held  as  other  elec- 
tions, 297. 
Elections,  at  what  time  to  be  opened  and  closed,  297. 

Sheriff  to  furnish  persons  elected,  if  requested,  with  a  copy  of  the  list  of  votes,  297. 
Penalty  on  sheriffs  for  failing  to  do  their  duty  in  regard  to  elections,  297. 
Candidate  not  elected,  to  be  furnished  with  a  statement  of  the  polls,  upon  paying  two  dollars  for  the 

same,  297. 
When  no  sheriff,  the  coroner  to  hold  the  election,  298. 
When  there  is  neither  sheriff  nor  coroner,  three  justices  may  appoint  a  freeholder  for  that  purpose, 

293. 
Penalty  on  persons  not  qualified,  for  voting  at  elections,  298. 
Musters  not  to  be  on  the  day  and  at  the  place  of  any  election,  298. 
Penalty  for  bribing  an  elector  to  give  his  vote,  298. 
Penalty  for  treating  at  elections,  293. 

Sheriff  to  advertise  the  two  preceding  sections  against  bribing  and  treating  at  elections,  299. 
Penalty  on  members  for  giving  any  gratuity,  &c.  to  secure  their  election,  299. 
Sheriffs  to  make  return  to  the  General  Assembly,  of  members  elected  from  their  counties  to  serve 

therein,  300. 
How  any  person  contesting  the  seat  of  a  member  shall  proceed,  300. 
Penalty  on  witnesses  for  failing  to  attend  and  give  evidence  m  contested  elections,  300. 
Pay  of  witnesses  for  attending  in  such  cases,  301. 
Breaking  up  an  election,  how  punishable,  200. 

Election  for  governor,  when  to  be  held  and  how  to  be  conducted,  302. 
Persons  contesting  governor's  election,  how  to  proceed,  304. 
Sheriffs  to  transmit  a  duplicate  return  of  the  vote  for  governor,  &c.,  304. 
Time  and  manner  of  conducting  the  election  for  members  to  the  house  of  representatives  in  congress, 

390. 
Governor  may  order  such  elections  at  other  than  the  regular  time  in  certain  cases,  390. 
Penalty  on  persons  for  voting  more  than  once  at  an  election,  390. 
Separate  elections  in  counties,  how  to  be  conducted,  390. 
Duty  of  the  returning  officer  in  regard  to  elections,  390. 
Returning  officers  of  the  different  counties  of  the  district  to  meet  and  compare  the  polls,  and  to  give 

a  certificate  of  election  to  the  successful  candidate,  391. 
Provision  where  there  is  an  equal  number  of  votes  for  two  or  more  candidates,  391. 
Governor  to  commission  persons  elected  representatives,  392. 
Returning  officer's  allowance  for  comparing  the  polls,  392. 
How  and  when  elections  to  be  held  in  case  of  vacancy,  392. 
For  election  of  clerks  of  the  county  and  superior  court,  see  Clerks  of  the  County  and  Superior 

Court. 
For  election  of  sheriffs,  see  Sheriff. 
For  election  of  constables,  see  Constables. 
ELECTORS  OF  THE  PRESIDENT  AND  VICE  PRESIDENT  OF   THE  UNITED  STATES. 
State  divided  into  fifteen  districts  for  choosing  electors  to  vote  for  president  and  vice  president  of 

the  United  States,  244. 
Time  and  manner  of  holding  the  elections  for  electors,  245. 
Certificate  and  return,  by  whom  to  be  made,  245. 
Penalty  in  case  of  failure  to  make  return,  245. 
Election  of  electors  to  be  held  every  four  years,  246. 
When  and  where  the  electors  shall  meet  to  give  their  votes,  246. 
The  governor  shall  issue  his  proclamation  for  an  election  in  case  of  a  vacancy  in  both  the  offices  of 

president  and  vice  president,  246. 
Penalty  on  electors  for  failing  to  attend,  247. 


660  INDEX. 

ELECTORS  OF  THE  PRESIDENT  AND  VICE  PRESIDENT,  (Continued.) 

Penalty  on  sheriffs  for  refusing  to  lake  the  poll,  or  making  false  returns,  &c.,  247. 

Compensation  of  electors,  247. 

Compensation  of  sheriffs  for  holding  elections,  &c.,  247. 

Electors  may  supply  vacancies  in  their  body,  247. 
EMANCIPATION. 

How  slaves  may  be  emancipated,  585. 

Owner  to  give  bond  conditioned  for  slaves  leaving  the  State,  SSSi. 

Emancipated  slaves  to  leave  the  State  in  ninety  days,  585. 

How  slaves  may  be  emancipated,  when  directed  so  to  be  done  by  will,  585. 

Slaves  over  fifty  years  of  age  may  be  emancipated  for  meritorious  services,  586. 

Emancipated  slaves,  not  leaving  the  State  or  returning,  may  be  arrested  and  sold,  586. 

In  such  case  suit  may  also  be  brought  upon  the  bond  given  by  the  owner,  586. 

Grand  jury  to  present  slaves  offending  in  this  particular,  587. 

No  slave  to  be  set  free  but  according  to  the  above  regulations,  587. 
EMBEZZLEMENT. 

Servants,  embezzling  their  master's  goods,  how  punishable,  194. 

Embezzling  records,  &c.,  how  punishable,  198. 
ENTRIES  AND  GRANTS. 

What  lands  subject  to  entry,  249. 

Swamp  lands,  not  exceeding  fifty  acres,  between  lines  of  tracts  heretofore  granted,  subject  to  entry, 
249. 

Land  in  a  swamp,  not  containing  more  than  two  thousand'aeres,  may  be  entered,  except  in  certain 
cases,  249. 

Appointment  of  entrj'  takers  and  surveyors,  249. 

Where  there  is  a  vacancy  in  the  office  of  entry  taker,  the  clerk  of  the  county  court  may  act  as  such, 
249. 

Oaths  and  bonds  of  entry  takers  and  surveyors,  250. 

Surveyors  may  appoint  deputies,  250. 

Every  citizen  may  enter  lands,  250. 

Price  at  which  lands  may  be  entered,  250. 

When  entry  money  to  be  paid,  250. 

On  failure  of  paying  entry  money,  a  subsequent  enterer  entitled,  250. 

In  case  of  lapse,  the  same  person  shall  not  re-enter  within  twelve  months,  251. 

How  entries  to  be  made  and  warrants  to  issue,  251. 

How  surveys  to  be  made  and  returned,  251. 

Surveys  to  be  according  to  priority  of  entry,  251. 

When  the  warrant  is  lost,  duplicate  may  issue,  252. 

On  the  death,  &c.  of  entry  taker,  his  successor  to  issue  warrants,  252. 

How  entry  takers  to  make  entries  for  their  own  use,  252. 

How  surveyors  to  have  surveys  made  for  themselves,  252. 

Entry  takers  to  make  annual  returns  to  the  secretary  of  state,  253. 

Penalty  for  failure,  how  to  be  recovered,  253. 

Public  treasurer  to  receive  the  entry  money,  253. 

When  the  secretary  shall  issue  grants,  253. 

How  grants  to  be  authenticated,  253. 

All  grants  to  be  registered — Copies  may  be  registered,  253. 

How  the  grant  to  issue  on  the  death  of  the  enterer,  253. 

When  a  seal  to  a  grant  is  lost,  it  may  be  renewed,  254,  304. 

Certain  grants  heretofore  issued  to  surveyors,  &c.  confirmed,  254. 

Certain  other  grants  declared  valid,  254. 

Grants  made  upon  entries  extending  into  two  or  more  counties  confirmed,  254. 

How  to   correct  mistakes  made  by  surveyors  or  other  ofiicers  in  perfecting  title  to   land  upon 
entries,  254. 

Cost  of  correcting  such  mistakes,  by  whom  to  be  paid,  255. 

Rectified  copies  of  grants  to  be  registered  in  certain  cases,  255. 

Persons  aggrieved  by  the  issuing  of  patents,  how  to  proceed,  255. 

Proceedings  and  judgment  of  the  court  in  such  cases,  256. 

Copy  of  judgment  to  be  filed  in  the  secretary's  oSice,  256. 


INDEX.  661 

ENTRIES  AND  GRANTS,  (Continued.) 

Whenever  the  State  ■wishes  to  repeal  letters  patents  or  grants,  supreme  court  to  have  original  juris- 
diction, 256. 

What  decree  the  court  may  make,  256. 

Cases  now  in  the  superior  court  may  be  removed  to  the  supreme  court,  256. 

Indian  reservations  not  to  be  entered,  256. 

Time  for  paying  on  certain  entries  extended,  257. 

Evidence  necessary  to  support  title  under  H.  or  H.  E.  McCuUoch,  262. 

Grant  from  the  proprietors,  or  a  copy  thereof  in  titles  under  H.  or  H.  E.  McCuUoch,  sufficient  evi- 
dence, without  producing  the  grunt  to  the  proprietors,  262. 

Entries  of  land  subject  to  taxation,  511. 

Lands   sold  for  taxes  and  bid  off  for  the  governor,  to  be  deemed  vacant  laud,   and   subject  to 
entry,  526. 

Lands  sold  for  taxes  to  revert  to  the  State,  if  the  purchaser  fails  to  comply  with  the  terms  of  sale, 
and  to  be  deemed  vacant,  and  subject  to  entry,  527. 

Secretary  of  state  to  take  receipts  for  grants,  563. 
may  send  grants  by  mail,  564. 
ENTRY  TAKER.     See  Entries  and  Grants. 

Appointment  of  entry  takers,  249. 

Where  there  is  a  vacancy,  the  clerk  of  the  county  court  to  act  as  entry  taker,  249. 

Entry  taker  to  give  bond  and  take  oaths,  250. 

Form  of  entry  taker's  oath,  437. 

On  the  death  of  an  entry  taker,  his  successor  shall  issue  warrants,  &c.,  252. 

How  entry  takers  to  make  entries  for  their  own  use,  252. 

Eutry  takers  to  make  annual  returns  to  the  secretary  of  state,  253. 

Penalty  for  failure,  how  to  be  recovered,  253. 

For  a  remedy  on  their  bonds,  see  Official  Bonds. 

Fees  of  entry  takers,  558. 
EaUITY.     See  Courts  of  Equity. 
EQ,UITY  OF  REDEMPTION.     See  Execution. 
ESCAPE. 

Sheriff  or  other  officer  suffering  a  criminal  to  escape,  how  punishable,  199. 

Duty  of  the  attorney  general  and  solicitors  in  such  cases,  200. 

Sheriff  periTutting  an  escape  in  civil  cases  to  be  liable  to  action  of  debt,  569. 
ESTATES. 

Estates  in  tail  converted  into  fee  simple,  258. 

In  joint  tenancy  the  share  of  the  person  dying  shall  not  go  to  the  survivor— Proviso  as  to  partners  in 
trade,  253. 

Certain  contingent  limitations  in  deeds  or  wills,  how  construed,  259,  622. 

In  conveyances  to  uses,  the  possession  shall  be  transferred  to  the  use  without  livery  of  seizin,  259. 

Grantees  of  reversions  to  have  the  like  advantages  against  the  tenants  for  life  or  years,   as  the 
grantors  had,  259. 

Tenants  for  life  or  years  to  have  like  advantages  against  the  grantees  of  reversions,  as  they  had 
against  the  grantors,  259. 

The  buying  and  selling  pretended  rights  or  titles  prohibited,  260. 

What  warranties  shall  be  void,  260. 

What  leases  made  by  husband  and  wife  shall  be  good  against  the  lessors,  260. 

What  leases  made  by  husband  and  wife  shall  not  be  good,  250. 

Tenants  for  life  protected  against  feigned  recoveries,  261. 

Proviso  for  recoveries  by  good  title,  261. 

Certain  recoveries  by  assent  good,  261. 

A  termor  may  falsify  for  his  term,  261. 

Terms  for  years  protected  against  recoveries,  261. 

Persons  having  lands  by  execution  protected,  261. 
EVIDENCE. 

Evidence  necessary  to  support  title  under  Henry  McCuUoch  or  Henry  Eustace  McCuUoch,  262. 

Grant  from  the  proprietors,  or  a  copy  thereof,  in  titles  under  H.   McCuUoch  or  H.  E.  McCuUoch, 
sufficient  evidence,  without  producing  the  grant  to  the  proprietors,  262. 

What  shall  be  evidence  of  the  law  of  another  state,  263. 


662 


INDEX. 


EYIDKNCE,  {Continued.) 

Printed  statute  book  evidence  of  private  acts,  263. 

Other  evidence  of  private  acts,  263. 

Copies  from  the  secretary's  office  of  plats  of  survey  maybe  read  as  evidence,  263. 

What  shall  be  evidence  of  administration  and  of  returns  of  administrators  in  other  states,  263. 

Certified  copies  of  wills  or  deeds  from  other  states  to  be  received  as  evidence,  263. 

The  printed  copies  of  the  revised  statutes  to  be  received  as  evidence,  55. 

In  an  action  against  the  drawer  or  endorser  of  a  bill  of  exchange,  &c.,  protest  of  a  notary,  &c. 

shall  be  evidence  of  a  demand,  &c.,  95. 
Copy  of  the  account  evidence  under   the  book  debt  law  unless  notice  be  given  to  produce  the 

original,  93. 
An  official,  signed  by  the  comptroller,  to  be  received  as  evidence  in  the  courts  of  this  State,  113. 
Overseers  of  roads  competent  to  prove  notice  to  hands,  541. 

Probates  of  wills,  evidence  of  the  devise  of  real  estate,  and  copies  may  be  received  as  originals,  621 . 
EXECUTIONS. 

Houses,  lands  and  other  hereditaments  may  be  taken  in  execution,  265. 

All  process   of  execution  to   issue   against  lands  and   tenements,  as  well  as  goods   and   chattels, 

though  the  latter  are  to  be  first  taken,  265. 
Shetifi"  may  deliver  goods,  and  one  half  of  the  land  of  the  debtor  to  the  plaintiflF,  until  the  debt  or 

damages  be  levied,  &c.,  265. 
Executions  may  be  levied  upon  goods,  lands,  &c.  held  in  trust  for  the   person   against  whom  the 

executions  issued,  266. 
Purchaser  under  such  execution  to  hold  the  property  discharged  of  the  trust,  266. 
The  equity  of  redemption,  and  the  legal  right  of  redemption  in  lands,  liable  to  execution,  260. 
Sheriff  to  set  forth  in  his  deed  that  the  land  v/as  under  mortgage,  266. 
What  articles  shall  be  exempt  from  execution,  266. 

When  justice's  execution  shall  he  levied  on  land  and  returned  to  court,  what  to  be  done,  266. 
Where  the  sale  of  the  land  upon  the  return  of  a  justice's  execution,  does  not  satisfy  the  judgment 

and  costs,  the  court  to  grant  execution  for  the  balance,  266. 
How  and  where  sales  of  lands  and  slaves  under  execution  shall  be  made,  267. 
County  court  may  appoint  additional  places  of  public  sale,  267. 
Sheriff  or  other  officer  to  give  notice  of  the  sale  of  land,  &,c.  under  execution,  267. 
How  and  for  what  length  of  time  advertisement  shall  be  made,  267. 
At  what  lime  of  the  day,  execution  sales  shall  commence,  267. 
Penalty  on  sheriff  or  other  officer  for  selling  contrary  1o  this  act,  267. 
Sheriff,  &c.  returning  no  sale  for  want  of  bidders,  how  to  proceed,  268. 
Justice's  execution  to  bind  personal  property  only  from  its  levy,  268. 
Sheriff  or  other  officer  may  take  bond  for  the  forthcoming  of  property  levied  on,  268. 
""    Officer,  how  to  proceed  upon  such  bond  when  broken,  268. 

Officer  levying  a  justice's  execution  on  land,  to  give  the  defendant  five  days  notice  before  court,  268. 
Court  to  direct  a  notice  when  none  has  been  given,  269. 

County  court  to  settle  the  charges  of  officers  for  keeping  horses,  &c.  taken  in  execution,  269. 
Officer  to  make  out  his  account  for  keeping  horses,  &c.  and  to  deliver  the  debtor  a  copy  thereof,  and 

return  the  account  with  the  execution,  269. 
Purchaser  under  execution,  may  sue  the  defendant  in  the  execution,  if  there  be  a  defect  in  the  title 

to  the  thing  sold,  269. 
A  party  at  whose  suit  any  person  may  be  charged  in  execution,  may  after  the  death  of  such  person 

in  execution,  have  anew  execution  against  the  land  and  goods  of  the  deceased,  270. 
What  execution  may  be  issued  against  a  corporation,  119. 
Where  a  defendant  to  a  suit  in  the  county  court  removes  himself  or  his  property,  the   clerk  may 

issue  an  execution  to  any  county,  &c.,  166. 
No  execution  to  issue  on  a  judgment  after  a  year  and  a  day,  without  a  scire  facias  to   revive  the 

same,  170. 
Party  committed  in  execution  not  to  be  discharged  on  habeas  corpus,  170. 
Administrator  de  bonis  non  may  have  execution  on  a  judgment  obtained  by  a  former  administrator, 

171. 
Executions  may  issue  in  equity  as  at  law,  &c.,  181. 
Justice's  execution,  how  to  issue  and  be  returned,  356. 
Defendant  may  stay  justice's  execution  by  giving  security,  356. 


INDEX. 


663 


EXECUTIONS,  {Continued.) 

How  such  security  to  be  given,  356.  -- 

No  stay  allowed  on  a  former  judgment,  356. 

Justice's  execution,  when  returnable,  to  whom  to  issue,  and  against  what  property,  357. 

Execution  from  a  justice  against  a  person  removing  out  of  the  county,  how  to  be  proceeded  on,  358. 

How  and  in  what  time  a  party  desirous  to  stay  an  execution,  but  unprovided  with  sureties,  shall  ♦ 

proceed  to  obtain  such  stay,  359.  \ 

How  a  party  shall  proceed  who  was  unable   to  attend  the  trial  from  sickness,  &c.,  359. 

Duty  of  the  justice  and  constable,  upon  such  stay  of  execution  being  allowed,  359. 

Execution  may  issue  before  the  stay  is  granted,  360. 

Upon  security  given  for  the  stay,  the  officer  must  return  the  execution  to  the  justice,  360. 

Sheriifs  and  coroners  to  pay  costs  on  execution  to  the  clerks,  428. 

Clerks  of  courts  may  issue  execution  for  fees  in  certain  cases — Bill  of  costs  to  be  annexed,  556. 

Execution  against  the  estate  of  a  minor,  when  and  how  to  issue,  365. 
EXECUTORS  AND  ADMINISTRATORS. 

County  courts  shall  grant  letters  testamentary  and  of  administration,  272. 

To  whom  administration  shall  be  granted,  272. 

Executors  and  administrators  to  take  an  oath,  and  administrators  to  give  bond,  272. 

Form  of  the  condition  of  the  bond,  272. 

Form  of  executors  and  administrators'  oaths,  440. 

Special  administration  may  in  certain  cases  be  granted  by  three  justices,  273.         , 

Courts  of  equity  may  in  certain  cases  grant  special  administration,  273. 

Executors  residing  out  of  the  State  to  give  bond  and  security  within  one  year,  274. 

A  man  residing  out  of  the  State,  or  about  to  remove,  marrying  an  executrix,  may  be  compelled  to 
give  bond  and  security,  274. 

Penalty  for  administering  before  letters  granted — Proviso  for  the  family's  using  the  crop,  &c.,  274. 

Bonds  of  administrators  and  executors,  how  payable,  and  the  remedy  on  them,  275. 

Inventory  to  be  returned,  275. 

When  and  how  an  executor  or  administrator  may  sell  the  personal  property,  275. 

The  preceding  section  not  to  affect  powers  under  a  will,  275. 

W?ien  the  administration  is  granted  to  the  highest  creditor,  the  sheriff  must  sell,  276. 

Sales,  &c.  to  be  at  public  auction  and  between  eleven  and  four  o'clock — Penalty  for  selling  other- 
wise— Proviso  as  to  executors,  276. 

Dignity  of  debts,  276. 

Executors  and  administrators  to  advertise  within  two  months,  276. 

How  the  advertisements  may  be  proved,  276. 

Executors  and  administrators  to  pay   over  at  the   end   of  two  years,  upon  refunding  bond  being 
given — Remedy  of  creditors  on  such  bonds,  277. 

The  refunding  bonds  and  descriptive  lists  of  property  to  be   filed  among  the  records  of  the  county 
court,  277. 

When  and  how  the  creditors  may  have  a  scire  facias  on  such  bonds,  277. 

Estate  remaining  seven  years  unclaimed,  to  be  paid  over  to  the  trustees  of  the  university,  277. 

No  debt  to  be  discharged  by  naming  a  person  executor,  278. 

Estates  for  life  of  another,  and  estates  of  cestui  que  trust  to  be  assets,  278. 

Executors  and  administrators  to  have  nine  months  to  plead  to  suits  in  court,  278. 

Same  privilege  in  warrants  before  justices,  278. 

Warrant  before  justices  to  be  returned  to  court  when  an  executor  or  administrator  pleads  no  assets 
— Costs  in  such  cases,  278. 

No  lien  on  the  assets  created  by  the  commencement  of  a  suit,  278. 

Heirs  or  devisees  may  contest  the  plea  of  no  assets — Proceedings  thereon  ,  279. 

Deeds  for  lands  contracted  to  be  sold  by  the  deceased,  may  be  made  by  his  executors  or  adminis- 
trators, 279. 

Commissions  to  executors  and  administrators  to  be  allowed  by  the  county  courts,  279. 

Relief  for  the  securities  of  executors  and  administrators  may  be  obtained  in  the  county  court,  280. 

Power  of  the  superior  court  in  such  cases,  280.  .•.;,- 

Publication  may  be  made  in  such  cases,  280.  .    ^■ 

In  what  cases  executors  of  executors  shall  have  actions,  280. 

When  some  executors  refuse,  those  accepting  the  trust,  or  if  all  die  or  refuse,  the   administrators 
with  the  will  annexed,  may  sell  lands  according  to  the  will,  281. 


664 


INDEX. 


EXECUTORS  AND  ADMINISTRATORS,  (Coniinuerf.) 
Who  shall  be  chargeable  as  executor  de  son  tort,  281. 

Executors  or  administrators  of  executors  or  administrators  liable  for  a  devastavit,  281. 
When  right  of  action  shall  survive  to   executors   and  administrators,  and  executors  of  executors, 

281. 
Appeals  allowed  from  an  order  of  the  county  court  granting  letters  testamentary  or  of  administra- 
tion, 61. 
Executors  and  administrators  may  prove  the  book  debts  of  the  testator  or  intestate,  98. 
Administrator  de  bonis  non  may  have  execution  on  judgment  obtained  by  a  former  administrator, 

171. 
In  suits  upon  the  bonds  of  executors,  &c.  upon  motion  at  the  appearance  term,  a  reference  may  be 

made  to  have  an  account  stated,  171. 
What  shall  be  evidence  of  administration,  and  of  returns  of  administrators  in  other  states,  263. 
Contracts  of  executors  of  administrator,  to  be   answerable   out  of  their  own  estate,  must  be  in 

writing,  &c.,290. 
Creditors  must  claim  "within  seven  years  from  the  death  of  the  debtor,  or  be  forever  barred,  375. 
Within  what  time  after  the  qualification  of  executors  or  administrators,  creditors  must  present  their 

claims — Proviso   for  infants,  &c.,  375. 
Proviso  when  the  delay  is  at  the  request  of  the  executor  or  administrator,  and  provided  that  the 

executor,  &c.  has  advertised,  375. ^ 
Surety  paying  a  debt  shall  have  the  same  priority  as  the  creditor  against  executors  and  admmistra- 

tors,  593. 
The  administrator  to  return  in  his  inventory  the  year's  allowance  for  the  widow,  but  not  to  be  accoun- 
table for  the  same  as  assets,  618- 
Administrator  to  pay  the  cost  of  the  petition  for  the  widow's  year's  allowance,  618. 
EXHIBITERS  OF  CURIOSITIES.     See  Revenue. 

FAIRS. 

County  courts  may  appoint  fairs,  282. 

Commissioners  to  be  appointed,  who  may  regulate  the  fairs,  282. 

Inhabitants  to  have  free  liberty  of  the  fairs,  282. 
FALSE  JUDGMENT.     See  Recordari. 
FALSE  LIGHTS. 

Holding  out  false  lights  on  the  sea  coast,  how  punishable,  204. 
FALSE  TOKENS. 

Cheating  by  false  tokens,  how  punishable,  205. 
FEME  COVERT.     See  Husband  and  Wife. 
FENCES. 

Every  planter  shall  keep  a  sufficient  fence  around  his  cleared  ground  under  cultivation,  283. 

Damages  done  by  stock  when  fence  is  sufficient,  how  ascertained  and  recovered,  283. 
.  Injuries  done  to  stock  by  persons  not  having  a  legal  fence,  how  ascertained  and  recovered,  284. 

Either  party  dissatisfied  may  appeal — Proceedings  thereon,  284. 

Either  party  may  summon  witnesses,  284. 

Penalty  on  slaves  for  killing  stock  contrary  to  the  provisions  of  the  act  concerning  fences,  284. 

Master  or  overseer  to  pay  the  damages  sustained  by  slaves  killing  stock,  &c.,  284. 

Persons  not  keeping  lawful  fences  liable  to  indictment,  200. 
FERRIES.     See  Roads,  Ferries  and  Bridges. 
FILIAL  PORTIONS.    See  Petition,  Intestate's  Estate. 

Children  born  after  the  making  of  their  parent's  will  may  petition  for  a  provision,  623. 

Court  to  decree  a  share  of  the  personal  estate,  and  appoint  commissioners  to  allot  a  share  of  the 
real,  623. 

Commissioners'  duty  in  making  the  allotment,  624. 

Legatees  to  contribute  proportionally,  624. 

What  decree  the  court  may  make  on  the  return  of  the  commissioners,  624. 

After  a  decree  the  petitioners  to  be  deemed  legatees  and  devisees,  624. 

If  no  petition  be  filed  by  an  after-born  child  within  two  years,  executors  to  file  a  bill  or  petition  of 
interpleader,  625. 

Guardian  to  be  appointed  by  the  court  for  the  infant  if  he  have  none,  625. 

Petition  to  be  a  lien  on  the  lands  devised,  625. 
FINANCE.     See  Committee  of  Finance. 
FINES  AND  FORFEITURES. 

All  fines,  forfeitures,  &c.  to  be  paid  to  the  county  trustee,  124. 


INDEX.  665 

PINES  AND  FORFEITURES,  (Continued.) 

Clerk  to  render  an  annual  statement  of  fines,  forfeitures,  &c.,  124. 

Sheriff  shall  collect  and  pay  over  all  fines,  forfeitures,  &c.,  124. 

Fines,  forfeitures,  &c.  to  be  paid  to  trustee  of  the  county  where  the  offence  was  committed,  125. 

Judges  of  the  superior  courts   may  mitigate   or  remit  recognizances,  both  before  and  after  judg- 
ment, 220. 

Clerks  to  refund  when  the  remitted  forfeiture  has  been  paid,  220. 

County  trustee  to  refund  when  such  remitted  forfeiture  has  been  paid  over  to  him,  220. 

County  courts  may  remit  fines ;  and  also  forfeitures  before  judgment,  221. 

Appeals  allowed  from  judgments  on  forfeited  recognizances,  221. 

No  execution  to  issue  on  a  forfeited  recognizance,  &c.  until  after  a  scire  facias,  221. 

Clerks  to  issue  a  joint  scire  facias  against  the  principal  and  his  sureties  on  a  recognizance,  221. 

How  such  scire  facias  to  be  executed,  221. 

Such  scire  facias  to  be  entered  as  one  suit  against  principal  and  his  sureties,  222. 

One  set  of  costs  only  to  be  collected,  except  when  the  defendants  plead  separately,  222. 

Sheriffs'  sureties  liable  for  fines  imposed  on  him,  568. 
FIRE  COMPANIES. 

Members  of  fire  companies  exempt  from  militia  duty,  395. 
FIRE  WOOD. 

Regulations  as  to  the  sale  of  fire  wood  in  towns,  346. 
FISH.     See  Inspections  and  Inspectors. 

One  fourth  of  a  river  or  creek,  including  the  deepest  part,  to  be  left  open  for  the  passage  of  fish,  535. 

Penalty  for  erecting  a  stand,  &c.  in  the  part  of  the  river  required  to  be  left  open  for  the  passage  of 
fish,  535. 

Penalty  for  setting  nets  across  the  main  channel  of  any  navigable  stream,  536. 

To  erect  stand,  &c.  to  prevent  the  passage  offish  indictable — Proviso  as  to  seines,  536. 

Slaves  offending  as  to  this  particular  to  be  whipped,  536. 
FLAXSEED.     See  Inspections  and  Inspectors. 
FLOUR.     See  Inspections  and  Inspectors. 
FORCIBLE  ENTRY  AND  DETAINER. 

Forcible  entry  punishable  by  indictment,  285. 

Summary  remedy  before  justices  against  those  who  maybe  guilty  of  forcible  entry  and  detainer, 
285. 

Justices  to  have  jurors  summoned,  285 . 

Penalty  on  the  sheriff  and  others  for  failing  to  assist  the  justices,  286. 

No  restitution  to  be  awarded  when  the  party  has  been  in  possession  three  years,  286. 

Remedy  extended  to  tenants  for  term  of  years,  286. 

Record  to  be  made  of  the  proceedings,  286. 
FORFEITURES.     See  Mnes  and  Forfeitures. 

Forfeiture  for  suicide  abolished,  197. 
FORGERY. 

Forgery,  how  punishable,  195. 
FORNICATION  AND  ADULTERY. 

Fornication  and  adultery,  how  punishable,  202. 

Penalty  for  committing  fornication,  609. 
FORTHCOMING  BOND.     See  E.vecutions. 
FRAUDS  AND  FRAUDULENT  CONVEYANCES. 

All  conveyances  of  lands  or  goods,  made  to  defraud  creditors,  shall  be  void,  287. 

Conveyances  made  to  defraud  purchasers  shall  be  void,  288. 

Penalty  on  the  parties  to  fraudulent  gifts,  grants,  &c.,  288. 

Conveyances  bona  fide,  upon  good  consideration,  not  to  be  affected,  288. 

What  proceedings  may  be  had,  when  the  property  of  a  debtor  is  fraudulently  conveyed  to  injure  his 
creditors,  288. 

Where  the  party  fails  to  appear,  judgment  may  be  entered  by  default,  269. 

Mode  of  proceeding  when  judgment  is  given  by  a  justice  of  the  peace,  290. 

Contracts  for  the  sale  of  land  and  slaves  must  be  in  writing,  290. 

Persons  removing  debtors,  to  hinder,  delay  or  defraud  creditors,  to  be  liable  for  their  debts,  290. 

Contracts  of  executors,  &c.  to  be  answerable  out  of  their  own  estate,  or  to  charge  any  person  with 
the  debt,  &c.  of  another,  must  be  in  writing,  290. 

Contracts  with  the  Cherokee  Indians  must  be  in  writing,  subscribed  by  two  witnesses,  290. 

VOL.   I.  84 


666 


INDEX. 


FREE  PERSONS  OF  COLOR.     See  Slaves  and  Free  Persons  of  Color. 
FUGITIVES  FROM  JUSTICE. 

Governor,  may  employ  an  agent  or  offer  a  reward  for  the  apprehension  of  fugitives  from  this  State 

charged  with  capital  oifences,  215. 
Judges  or  any  two  justices  may  commit  fugitives  from  other  states  charged  with  certain  criminal 
offences,  216. 

GAMING  CONTRACTS. 

Promises,  &c.  to  pay  money  upon  any  kind  of  gaming,  or  lent  for  the  purpose  of  gaming,  void,  291. 

Securities  in  such  cases,  void,  291. 
GAMING. 

Gaming  tables  prohibited,  206. 

Money  staked  for  betting  may  be  seized,  207. 

Penalty  for  opposing  the  destruction  of  the  tables  or  the  seizure  of  the  money,  207. 

for  suffering  gaming  tables  in  one's  house — Sheriff  to  sue  for  the  penalty,  207. 

To  keep  up  gaming  tables,  or  to  play  at  them,  indictable,  208. 

Persons  playing  cards  in  a  public  house,  indictable,  208- 

Tavern  keepers  and  retailers  of  spirituous  liquors,  indictable  for  suffering  gaming  in  their  houses,  208. 
GATES. 

Tax  on  gates  ,511,547. 

County  courts  may  authorize  the  erection  of  gates  across  public  roads,  547. 

How  a  person  desirous  of  erecting  a  gate  across  a  public  road,  shall  proceed  to  obtain  an  order  for 
that  purpose,  547. 

Appeal  allowed  from  such  order,  547. 
GENERAL  ASSEMBLY. 

When  and  where  the  election  for  members  of  the  General  Assembly  shall  be  held,  293. 

The  county  courts  may  alter,  establish  or  discontinue  separate  places  of  election,  293. 

Time  and  place  of  holding  elections  to  be  advertised  by  the  sheriff,  293. 

County  courts  to  appoint  inspectors  for  every  election  precinct,  293. 

Clerk  to  furnish  the  sheriff  with  a  list  of  the  inspectors,  and  the  sheriff  to  notify  them,  293. 

If  the  court  fail  to  appoint  inspectors,  or  they  refuse  to  act,  the  vacancies  how  to  be  supplied,  294. 

Sheriff  to  furnish  boxes  for  receiving  the  tickets — Tickets,  how  to  be  received  and  put  into  the 
boxes,  294. 

Persons  qualified  to  vote,  how  to  give  in  their  tickets,  294. 

List  of  voters  to  be  kept,  294. 

How  the  boxes  are  to  be  opened  and  the  tickets  counted  out,  294. 

Manner  in  which  the  statement  of  the  polls  shall  be  made  up.  returned,  compared,  and  the  persons 
declared  duly  elected,  294. 

Manner  in  which  the  statement  of  the  polls  shall  be  made  out  in  the  senatorial  districts,  295- 

Where  the  polls  of  the  different  counties  composing  the  districts  shall  be  compared — And  how  the 
persons  elected  shall  be  so  declared,  295. 

Sheriffs  pay  for  attending  to  compare  the  polls  in  the  senatorial  districts,  296. 

Persons  offering  to  vote,  may  be  required  to  swear  to  their  qualification,  of  which  the  inspectors  shall 
be  the  sole  judges,  296. 

In  case  of  vacancies  occurring  before  the  meeting  of  the  General  Assembly,  it  shall  be  the  duty  of 
the  sheriff  to  notify  the  governor  thereof,  296. 

Persons  elected  and  refusing  to  accept,  or  resigning,  to  notify  the  governor,  296. 

Governor  in  such  cases  to  order  a  new  election,  297. 

Elections  held  under  a  writ  from  the  governor,  or  speaker  of  either  house,  to  be  held  as  other  elec- 
tions, 297. 

Elections,  at  what  time  to  be  opened  and  closed,  297. 

Sheriff  to  furnish  persons  elected,  if  requested,  with  a  copy  of  the  list  of  votes,  297. 

Penalty  on  sheriffs  for  failing  to  do  their  duty  in  regard  to  elections,  297. 

Candidate  not  elected,  to  be  furnished  with  a   statement  of  the  polls,  upon   paying  two  dollars 
for  the  same,  297. 

When  there  is  no  sheriff,  the  coroner  shall  hold  the  election,  298. 

When  there  is  neither  sheriff  nor  coroner,  three  justices  may  appoint  a  freeholder  for  that  pur- 
pose, 293. 

Penalty  on  persons  not  qualified,  for  voting  at  elections,  298. 


INDEX.  667 

GENERAL  ASSEMBLY,  (Continued.) 

Musters  not  to  be  od  the  day  and  at  the  place  of  any  election,  29S. 
Penalty  for  bribing  an  elector  to  give  his  vote,  298. 

for  treating  at  elections,  298. 
Sheriff  to  advertise  the  law  against  bribing  and  treating  at  elections,  299. 
Time  of  the  meeting  of  the  General  Assembly,  299. 

Governor  and  council  may  convene  the  General  Assembly  at  other  than  its  usual  meetings,  299. 
Members  of  the   General  Assembly  to  take  oaths  to  support  the  constitutions  of  this  State  and 

of  the  United  States,  299. 
Penalty  on  members  for  giving  any  gratuity,  &c.  to  secure  their  election,  299. 
Persons  elected  shall  attend  at  the  meeting  of  the  General  Assembly,  299. 
Penalty  on  persons  elected,  for  failing  to  perform  the  duties  of  their  appointment,  299. 
Members  to  have  freedom  of  speech,  and  to  be  protected  from  arrest,  &c.,  300. 
Sheriffs  to  make  return  to  the  General  Assembly  of  members  elected  from  their  counties  to  serve 

therein,  300. 
How  any  person  contesting  the  seat  of  a  member  shall  proceed,  300. 
Penalty  on  witnesses  for  failing  to  attend  and  give  evidence  in  contested  electionSj  300. 
Pay  of  witnesses  for  attending  in  such  cases,  301. 

Persons  desirous  of  procuring  the  passEige  of  a  private  law,  how  to  proceed,  301. 
Acts  of  the  General  Assembly,  when  to  be  in  force,  301. 
The  journals  of  the  two  houses  to  be  deposited  in  the  office  of  the  secretary  of  state,  who  shall 

certify  copies  thereof  when  required,  301. 
Pay  of  the  members  of  the  General  Assembly,  §50. 
Pay  of  the  clerks  and  other  ofl&cers  of  the  General  Assembly,  550. 
How  the  pay  of  the  members  and    officers  of  the  General    Assembly  shall   be  ascertained  and 

paid,  550. 
No  member  of  the  General  Assembly  shall  be  compelled  to  act   as  sheriff,  568. 
GIFTS. 

Gifts  of  slaves  must  be  in  writing,  attested  and  registered,  230. 
Proviso  as  to  advancements  to  children,  230. 
Deeds  of  gift  to  be  proved  and  registered,  230. 
GOVERNOR  AND  COUNCIL. 

Election  of  governor,  when  to  be  held  and  how  conducted,  302. 

Governor  to  reside  at  Raleigh,  302. 

A  house  to  be  provided  for  him,  302. 

Governor  shall  appoint  a  private  secretary,  who  shall  enter  letters,  &c.  in  a  letter  book,  303. 

Letter  book  to  be  kept  in  the  executive  office,  303. 

Meetings  of  the  council  of  state  shall  be  in  Raleigh,  303. 

Governor  and  council  may  convene  the  General  Assembly,  if  necessary,  303. 

Governor  to  procure  a  seal  for  the  State,  303. 

Also  one  for  each  court  of  record,  303. 

He  may  procure  new  seals  when  necessary,  303. 

How  the  seals  are  to  be  prepared,  303. 

Expense  of  seals,  how  paid,  303. 

Seals  to  be  delivered  to  the  proper  officers,  who  are  to  receipt  for  the  same,  303. 

When  a  seal  to  a  grant,  &c.  is  lost  or  destroyed,  how   such  instraments  may  be  resealed,  254, 

304. 
Compensation  of  sheriffs,   for  making  returns  of  the  governor's  election,  304. 
How  such  compensation  to  be  ascertained  and  paid,  304. 

Person  intending  to  contest  the  election  of  governor,  to  give  notice,  &c. — Proceedings  thereon,  304. 
Sheriffs  to  transmit  a  duplicate  return  of  the  vote,  &c.,  304. 
Penalty  on  persons  not  qualified  for  voting  for  governor,  305. 
Returns  of  the  governor's  election,  by  whom  and  when  to  be  opened,  305. 
How  the  election  to  be  determined,  305. 
Depositions  may  be  taken  in  contested  elections,  305. 
Governor  may  appoint  commissioners  in  other  states  or  territories  to  take  and  certify  affidavits, 

109. 
Governor  to  notify  clerks  of  courts  of  records  in  this  State  of  such  appointments,  110. 
Governor  may  appoint  four  aids  de  camp,  398. 


668 


INDEX. 


GOVERNOR  AND  COUNCIL,    (Continued.) 
Form  of  the  governor's  oath  of  office,  433. 
Salary  of  the  governor,  what  and  when  to  be  paid,  548,  549. 

Governor  may  have  blanks,  &c.  printed  for  the  use  of  his  ofiSce,  at  the  expense  of  the  State,  491. 
Salary  and  fees  of  the  governor's  private  secretary,  549 — 551. 
Pay  of  the  councillors  of  state,  550. 
Pay  of  the  clerk  and  doorkeeper  of  the  council,  550. 

No  member  of  the  council  of  state  shall  be  compelled  to  act  us  sheriff,  568. 
Governor  may  remit  any  fine  or  penalty  incurred  by  general  or  field  officers  of  the  militia,  409. 
Governor  and  council  to  appoint  a  treasurer  when  he  fails  to  give  bond  during  the  recess  of  the 
legislature,  601. 
GRAND  JURY. 

At  each  court  grand  jury  shall  visit  the  jail,  133. 
Grand  jury,  how  drawn,  149. 

to  present  all  orphans  without  guardians,  and  all  abuses  of  guardians,  312. 
Form  of  the  oaths  to  be  taken  by  the  foreman  and  other  grand  jurors,  439. 
GRANTS.     See  Entries  and  Grants. 
GROWING  CORN. 

Stealing  growing  corn,  &c.  larceny,  1 96. 
GUARDIAN  AND  WARD. 

A  father  may,  by  deed  or  will,  appoint  a  guardian  for  his  children,  306. 

The  superior  and  county  courts  to  have  cognizance  of  all  matters  relating  to  orphans  and  their 

estates — To  appoint  guardians  and  take  bonds,  307. 
Justices  liable  for  taking  insufficient  security — Proviso,  307. 
Guardians'  bonds,  how  payable,  and  the  remedy  upon  them,  307. 
Clerks  to  enter  upon  their  docket  the  names  of  the  justices  on  the  bench  when  guardiein  bonds  are 

taken — Proviso  for  a  justice  present,  but  not  concurring,  307. 
Guardians  may  be  appointed  to  take  charge  of  children  whose  fathers  are  alive,  308. 
\-^  One  bond  only  to  be  taken  from  the  guardian  of  orphans  who  have  property  in  common,  303. 

Guardian  bonds  to  be  renewed  once  in  every  three  years — Clerk  to  issue  summons  to  guardians  fail- 
V  ing  to  renew,  308. 

Duty  of  the  clerks  of  the  superior  courts  as  to  guardians  appointed  by  such  courts,  and  failing  to 

settle  their  accounts  and  renew  their  bonds,  308. 
Clerks  of  the  county  courts  to  issue  notices  to  such  guardians,  309. 
Duty  of  guardians  in  taking  possession  of  the  estate  of  their  wards,  309. 
Guardians  to  render  an  account  of  the  estate  of  their  wards  upon  oath,  309. 
Orphan's  court  to  be  held— All  guardians  to  render  their  accounts  annually,  309. 
y^       Clerks  to  issue  ex  officio  summons  to  guardians  failing  to  render  their  accounts,  309. 
Clerk's  fee  for  issuing  summon  to  guardians,  and  how  collected,  309. 
Guardians,  by  order  of  the  court,  to  sell  the  perishable  estate  of  their  wards — To  lend  out  the 

money  of  their  wards  upon  bond  or  note,  and  to  account  for  the  interest  annually,  310. 
Bonds  taken  by  guardians  to  bear  compound  interest — May  be  assigned  to  wards  upon  their  coming 

of  age,  310. 
In  what  cases  slaves  and  stock  to  kept  on  ward's  lands — Proviso,  where  stock  becomes  too  numer- 
ous, 310. 
In  what  cases  ward's  land  and  slaves  to  be  rented  and  hired  out — How  the  land  to  be  rented,  311. 
Sales,  &c.  of  ward's  estate,  how  to  be  made,  311. 

Penalty  upon  a  guardian  for  suffering  his  ward's  land  to  lapse  or  become  forfeited  by  the  non-pay- 
ment of  taxes  or  other  dues,  311. 
Power  and  duty  of  the  courts,  where  guardians  mismanage  their  wards'  estate,  or  when  they  and 

their  sureties  are  likely  to  become  insolvent,  311. 
Grand  jury  to  present  all  orphans  without  guardians,  and  all  abuses  of  guardians,  312. 
Remedy  for  sureties  of  guardians  when  such  sureties  are  likely  to  suffer,  312. 

against  guardians  by  petition,  as  well  as  on  their  bonds,  312. 
Guardians  to  be  allowed  disbursements  and  expenses,  and  also  commissions,  312. 

of  orphans  removing  to,  or  residing  in  other  states,  how  to  obtain  the  personal  estate  of 
their  wards  in  this  State  out  of  the  hands  of  their  guardian  in  this  State,  312. 
How  to  proceed  when  there  is  no  guardian  in  this  State,  313. 
Power  of  the  court  of  equity,  in  relation  to  orphans  and  their  estates,  not  to  be  abridged,  313. 


INDEX.  669 

GUARDIAN  AND  WARD,  (Continued.) 

A  court  of  equity  may  direct  a  sale  of  the  real  or  personal  estate  of  infants,  if  such  sale  would  pro  ■ 

mote  the  interests  of  the  infants,  313. 
Manner  in  which  such  sale  shall  be  made,  and  how  the  proceeds  to  be  applied  and  secured, 

314. 
In  suits  upon  bonds  of  guardians,  upon  motion  at  the  appearance  term,  a  reference  may  be  made  to 

have  an  account  stated,  171. 
County  courts  to  appoint  guardians  to  idiots  and  lunatics,  319. 
Sureties  to  guardian  bonds  to  be  discharged  after  three  years  from  the  time  the  orphan  comes  of 

age,  374. 
How  a  guardian  shall  proceed  when  he  has  notice  of  a  debt  or  demand  against  his  ward,  365. 

HABEAS  CORPUS.  '' 

How  a  writ  of  habeas  corpus  may  be  obtained  in  vacation,  315. 
Duty  of  the  officer  or  other  person  to  whom  the  writ  is  directed,  315. 
Duty  of  the  judge,  on  the  return  of  the  writ,  315. 

Application  for  the  writ  must  be  made  within  two  terms  after  imprisonment,  316. 
When  the  superior  court  is  sitting,  the  writ  must  be  returned  in  open  court,  316. 
Penalty  on  a  judge  for  refusing  a  writ  of  habeas  corpus,  316. 

Penalty  on  the  officer  to  whom  such  writ  is  directed,  for  refusing  or  neglecting  to  obey  it,  316. 
Penalty  for  again  imprisoning  a  person  released  on  a  writ  of  habeas  corpus,  316. 
When  persons  committed  for  treason  or  felony  shall  be  entitled  to  a  trial  or  discharge,  316. 
Same  remedy  by  habeas  corpus  shall  be  had  by  persons  imprisoned  for  other  causes  than  criminal 

charges,  317. 
Party  committed  in  execution  not  to  be  discharged  on  habeas  corpus,  170. 
HARBORING. 

Penalty  for  harboring  orphan  children  without  having  them  bound  out,  69. 
Harboring  or  concealing  a  felon,  &c.,  how  punishable,  204- 

Persons  harboring  runaway  slaves,  subject  to  a  penalty  and  to  be  also  indictable,  209. 
HEADING.     See  Inspections  and  Inspectors, 
HEALTH.     See  Cluaranline  and  Health. 
HEIRS.    See  Descents,  Lands  of  Deceased  Debtors. 
HOGS.     See  Cattle,  Horses  and  Hogs. 
HOG'S  LARD.     See  Inspections  and  Inspectors, 
HORSES.     See  Cattle,  Horses  and  Hogs. 
HORSE  STEALING. 

Horse  stealing,  how  punishable,  194. 
HOUSE  BREAKING. 

Felony,  punishable  with  death,  to  break  open  houses  in  the  day  time,  and  steal  therefrom  to  the 
amount  of  two  dollars  and  upwards,  192. 
HUNTING. 

Not  lawful  to  kill  any  wild  deer  between  the  twentieth  of  February  and  the  fifteenth   of  August, 

317. 
Not  lawful  to  hunt  on  the  land  of  another  after  advertisement  posted  up  forbidding  it—  Time  within 

which  to  sue,  318. 
Hunting  in  the  woods  with  a  gun  by  firelight  indictable,  211. 
Persons  sending  their  slaves  into  the  woods  so  to  hunt,  how  punishable,  212. 
An  accomplice  in  fire  hunting,  giving  evidence  against  his  fellow,  to  be  discharged,  212. 
HUSBAND  AND  WIFE.     See  Marriage,  Divorce  and  Alimony. 

Suit  not  to  abate  by  the  marriage  of  ayeme  sole  plaintiflTor  defendant,  56. 
Husband,  made  party  plaintiff,  to  give  new  security  for  the  costs,  56. 
y-      How  deeds  executed  by  husband  and  wife,  shall  be  proved  or  acknowledged  and  registered— Wife 
to  be  privately  examined,  227. 
Provision  when  the  wife  is  sick  or  a  resident  of  another  county,  227. 
Form  of  the  commission  to  take  the  private  examination  of  a  feme  covert,  227. 
Conveyance  under  a  power  of  attorney  from  husband  and  wife,  valid  to  pass  lands,  223. 
How  deeds  and  powers  of  attorney  from  husband  and  wife,  living  out  of  this  State,  but  in  the  United 

States,  may  be  proved  and  registered,  228. 
How  when  husband  and  w.ife  reside  in  foreign  parts,  229. 


670  INDEX. 

HUSBAND  AND  WIFE,  {Continued.) 

What  leases  made  by  husband  and  wife  shall  be  good  against  the  lessors,  260. 
What  leases  made  by  husband  and  wife  shall  not  be  good,  260. 
IDIOTS  AND   LUNATICS. 

County  courts  to  appoint  guardians  to  idiots  and  lunatics,  319. 

How  idiocy  or  lunacy  to  be  ascertained,  319. 

When  county  courts  may  order  a  sale  of  the  real  estate  of  idiots  or  lunatics,  319. 

For  what  purpose,  and  in  what  manner,  the  court  of  equity  may  order  a  sale  of  the  real  estate  of  an 

idiot  or  lunatic — Provisos,  319. 
Court  of  equity  may  order  a  sale,  where  the  idiot  or  lunatic's  land  is  wanted  for  public  purposes — 
Proviso,  320. 
ILLEGITIMATE  CHILDREN.     See  Bastardy  and  Bastard  Children. 
INDICTMENT.     See  Criminal  Proceedings. 
INFANTS. 

■  Infants  may  sue  by  their  next  friend,  168. 
Infant  trustees,  how  to  convey,  234. 

A  court  of  equity  may  direct  a  sale  of  the  real  estate  of  infants,  if  such  sale  would  promote  the  in- 
terest of  the  infants,  313. 
Manner  in  which  such  sale  shall  be  made,  and  how  the  proceeds  shall  be  applied  and  secured,  314. 
What  disposition  to  be  made  of  the  property  of  an  infant  female  when  she  has  been  married  contrary 

to  law,  387. 
The  trustees  of  such  infant  female's  property  to  give  bond,  387. 
Court's  power  over  them,  388. 
How  to  obtain  a  license  to  marry  when  the  parents  or  guardian  of  an  infant  female  reside  out  of  the 

State,  388. 
Penalty  on  the  clerks  for  issuing  such  license  contrary  to  law,  338. 
No  person  under  eighteen  years  of  age  can  make  a  will  of  chattels,  623. 
IN   FORMA   PAUPERIS. 

Poor  persons  may  sue  in  _  for  ma  pauperis,  153. 
INFORMATION.     See  Corporations,  Quo  Warranto  and  Mandamus. 
INJUNCTIONS. 

Court  of  equity  may  grant  injunctions,  l&l . 

No  injunction  to  stay  an  execution  shall  issue  for  a  greater  sum  than  plaintiff  swears  to  be  just,  nor 

until  after  security  given,  182. 
No  injunction  to  issue  after  four  months  from  the  judgment  at  law  except  in  certain  cases,  182. 
Injunction  bonds,  after  dissolution  of  the  injunction,  to  be  proceeded  on  like  appeal  bonds,  182. 
In  what  cases  injunctions  to  stay  executions  on  behalf  of  the  State  will  be  allowed,  183. 
maUEST.     See  Coroner. 

County  to  pay  the  costs  of  inquests,  126. 
INSOLVENT   DEBTORS. 

The  person  of  a  debtor  shall  not  be  continued  in  prison,  after  delivering  up  bonajide  aU  his  efiects, 

17. 
Debtors  remaining  in  close   prison  twenty  days,   may  prefer  a  petition  to  two  justices,  or  to  the 
county  court,  or  to  a  judge  of  the  superior  or  supreme  court  in  or  out  of  court,  and  upon  notify- 
ing their  creditors,  may  take  oath,  &c.,  321. 
Such  debtors  to  be  forever  discharged  of  executions  against  the  body  for  the  debts  sued   for  and 

costs,  322. 
Proceedings,  when  out  of  court,  to  be  put  into  writing,  returned  to  court,  and  recorded,  322. 
Justices  may  discharge  debtors  when  committed  by  process  from  the  court  of  another  county,  322. 
Debtors  remaining  in  close  prison  twenty  days,  may  file  a  schedule — Proceedings  thereupon,  322. 
Oath  to  be  taken  by  a  debtor  filing  a  schedule,  323. 
Debtors  filing  a  schedule  and  taking  the  oath,  to  be  discharged,  323. 
Jailers  to  furnish  debtors  with  food  when  required,  and  if  the  debtor  is  unable  to  pay,  may  demand 

his  fees  for  the  same  of  the  creditor,  324. 
Jailers,  after  twenty  days,  may  notify  creditors  and  demand  security  for  their  fees,  324. 
Debtors  taken  upon  a  ca.  sa.  or  in  custody  by  surrender  of  bail  after  judgment^  for  debts  contracted 

since  the  first  of  May,  1823,  how  to  procure  their  discharge,  324. 
To  give  bonds  with  security  for  their  appearance  at  court — Proceedings  thereupon,  324. 


INDEX.  671 


INSOLVENT  DEBTORS,  {Continued.) 

Debtor  tendering  bonds  to  be  discharged,  325. 

Surety  may  surrender  his  principal,  325. 

Debtor,  having  given  ten  days  notice,  shall,  upon  motion,  be  permitted  to  take  the  oath  for  the  re- 
lief, &c.,  325. 

If  creditor  suggests  fraud,  issue  to  be  made  up — Debtor  may  be  examined  upon  oath,  325. 

Appeal  allowed  on  the  trial  of  such  issue,  326. 

When  the  jury  find  fraud,  the  debtor  to  be  imprisoned,  until  he  makes  a  full  and  fair  disclosure, 
326. 

Upon  making  such  disclosure,  he  may  take  the  oath,  326. 

Debtor  to  file  schedule  with  the  clerk  ten  days  previous  to  the  sitting  of  the  court,  326- 

When  creditor  resides  out  of  the  State,  to  whom  and  how  the  debtor  may  give  notice,  326. 

Property,  debts,  &c.  contained  ia  any  schedule,  to  vest  in  the  sheriflTof  the  county  where  such  sche- 
dule may  be  filed,  327. 

Court  to  appoint  commissioners  to  divide  the  debtor's  effects  among  his  creditors,  327. 

Debtor,  after  his  discharge,  not  to  be  arrested  again,  but  an  execution  may  issue  against  his  property 
afterwards  acquired,  327. 

Debtor  swearing  falsely,guilty  of  perjury,  328. 

No  female  to  be  imprisoned  for  debt,  328. 

Debtor  having  taken  the  benefit  of  prison  bounds,  may  take  the  benefit  of  the  act,  &c.  without  going 
into  close  prison,  328. 

Any  creditor  notified  may  suggest  fraud,  and  any  other  creditor  may  make  himself  a  party  to  the 
issue,  328- 

Any  one  or  more  of  the  creditors  may  appeal  without  the  others,  328. 

After  issue  made  up,  debtor  shall  not  discharge  himself,  but  by  trial  or  consent,  828. 

Prison  bounds  for  the  benefit  of  prisoners  to  be  laid  out  by  the  county  court,  480. 

Bonds  taken  from  debtors  for  keeping  the  prison  bounds,  how  to  be  proceeded  on,  480. 
INSPECTIONS  AND   INSPECTORS. 

Former  places  of  landing  and  inspection  continued,  and  the  county  courts  may  appoint  others,  330. 

County  courts  to  appoint  inspectors,  330. 

Inspectors  to  give  bonds— Remedy  on  the  bonds,  330,  331. 

Inspectors  to  attend  at  the  times  and  places  appointed,  331. 

No  exporting  merchant  to  be  an  inspector,  331. 

Not  more  than  six  inspectors  to  be  appointed  in  any  town,  331 . 

No  inspector  allowed  to  appoint  a  deputy — Proviso  in  favor  of  flour  inspectors,  332. 

Inspectors  to  hold  their  oSices  during  good  behavior — Pionso  as  to  Wilmington,  332. 

How  inspectors  shall  be  removed  for  misbehavior,  332. 

How  vacancies  in  the  office  of  inspectors  to  be  filled  when  the  county  court  is  not  in  session,  332. 

Penalty  for  acting  as  inspector  before  qualification,  333 

Form  of  inspectors'  oaths,  437,  438. 

Duty  of  inspectors  of  tobacco,  333. 

Inspectors  to  give  a  manifest  of  each  hogshead,  333. 

Owners  of  condemned  tobacco  to  have  it  reinspected  after  a  certain  time,  333. 

No  tobacco  to  be  exported  without  inspection,  334. 

Penalty  for  falsely  branding  a  hogshead  of  tobacco,  334. 

Punishment  for  forging  &c.  a  stamp,  note  or  receipt  for  tobacco,  334. 

Manner  of  proceeding  where  a  tobacco  note  is  lost,  334. 

How  a  person  demanding  his  tobacco,  alleged  to  have  been  injured  since  inspection,  shall  proceed, 
334. 

County  court  may  appoint  turners  up  and  coopers  of  tobacco,  335. 

Any  person  may  turn  up,  &c.  his  own  tobacco,  335. 

County  courts  to  appoint  pickers  of  tobacco,  335. 

Form  of  tobacco  picker's  oath,  437. 

No  tobacco  inspector  to  buy  tobacco,  336. 

County  courts  may  build  or  rent  warehouses,  &c.,  336. 

When  a  tobacco  warehouse  is  burned,  the  inspector  shall  not  be  liable  on  his  notes,  &c.,  336. 

County  courts  to  regulate  warehouse  rent,  &c.,  336. 

How  warehouses  may  be  rej)aired  or  rebuilt,  336. 

Private  warehouses  to  have  the  same  rules  as  to  rent,  &c.,  336. 


672 


INDEX. 


INSPECTIONS  AND  INSPECTORS,  (Continued.) 

No  inspector  of  flour  shall  sell  or  trade  in  flour,  or  buy  except  for  his  own  use,  337 , 

Degrees  of  flour,  337. 

What  flour  shall  pass  inspection,  337. 

Penalty  on  miller,  manufacturer  or  seller  of  flour  for  not  complying  with  the  provisions  of  the  in- 
spection law,  337. 

Inspectors  may,  in  certain  cases,  unpack  the  barrels  of  flour,  338. 

Persons  selling  barrels  of  flour  not  containing  the  requisite  quantity,  to  be  liable  for  the  deficiency, 
333. 

How  casks  of  flour  to  he  inspected,  338. 

Casks  to  be  branded,  and  the  quality  of  the  flour  marked,  &c.,  338. 

Owner  of  flour,  dissatisfied  with  the  inspection,  how  to  obtain  a  re-examination,  339. 

Penalty  for  exporting  flour  not  passed  by  inspector,  339. 

Penalty  on  master,  &c.  for  receiving  on  board  his  ship  uninspected  flour — Proviso,  339. 

Cask  of  flour  once  inspected,  not  liable  to  be  reinspected  in  sixty  days,  339. 

Cask  not  to  condemned  for  short  measure,  in  certeiin  cases,  if  it  contains  one  hundred  and  ninetysix 
pounds,  339. 

Penalty  for  packing  flour  in  a  branded  cask,  340. 
for  altering  inspector's  brand,  &c.,  340. 
on  inspectors  of  flour  for  neglect  of  duty,  340. 

Flour  maybe  sold  in  the  town  of  Fayetteville  without  inspection,  340. 

Duty  of  inspectors  of  beef,  pork,  rice,  flaxseed,  fish,  tar,  pitch  and  turpentine — and  penalties  for 
misconduct,  340. 

How  beef  and  pork  shall  be  inspected,  341 . 

Hog's  lard  to  be  inspected,  341. 

Rice,  how  inspected,  341. 

Fish,  how  inspected,  341. 

Pitch  and  turpentine,  how  inspected,  342. 

Tar,  how  inspected,  342. 

Inspectors  to  make  a  difl"erence  between  hard  and  soft  turpentine,  dippings  and  scrapings,  342. 

Makers  of  tar,  pitch  and  turpentine  to  brand  their  barrels  with  the  ioitials  of  their  names,  342. 

Inspectors  to  keep  a  book  for  entering  the  makers'  names,  &c.,  342. 

Beef,  pork,  rice,  fish,  flour  or  butter  to  be  reinspected  if  not  exported  in  sixty  days — Tar,  pitch  and 
turpentine  in  twenty  days,  343. 

No  cooper,  &c.  to  make  barrels  for  sale,  but  according  to  the  directions  of  the  inspection  law,  343. 

Seller  or  exporter  of  beef,  &c.  to  produce  the  inspector's  certificate,  &c.,  343. 

Penalty  on  masters  of  vessels  for  receiving  on  board  any  such  articles  uninspected,  343. 

Staves,  heading  and  shingles,  how  inspected,  344. 

Lumber,  how  inspected,  344. 

Saw  mill  lumber  on  the  Cape  Fear,  how  inspected,  344. 

Steam  mill  lumber,  how  inspected,  345. 

Inspectors'  fees,  by  whom  to  be  paid,  345. 

Staves,  lieading,  shingles,  boards,  plank  and  scantling  to  be  culled,  345. 

Purchaser  of  staves  or  heading  on  the  Cape  Fear,  to  pay  one  half  price  for  the  refuse,  345. 

No  inspector  shall  purchase  cuUings,  &c.,  345. 

Penalty  for  any  but  a  legal  inspector  of  staves,  &c.  acting  as  such,  345. 

How  fines  and  forfeitures  under  the  inspection  law,  to  be  recovered  and  applied,  345. 

Disputes  about  extra  cooperage  in  the  town  of  Wilmington,  how  to  be  determined,  345. 

Regulations  as  to  the  sale  of  fire  wood  in  towns,  346. 

Penalty  on  inspectors  for  taking  greater  fees  than  the  law  allows,  346. 

Fees  of  inspectors,  559. 

Fees  of  tobacco  pickers,  560- 
INTEREST.     See  Usury. 

Interest  on  bills,  bonds,  notes,  liquidated  accounts.  &c.  when  to  accrue,  94. 

Bills  of  exchange,  from  what  time  to  bear  interest,  94. 

Contracts  for  the  delivery  of  specific  articles  to  bear  interest,  94. 

In  actions  for  money  due  by  contract,  except  penal  bonds,  the  jury  must  distinguish  between  princi- 
pal and  interest,  and  the  judgment  for  the  principal  shall  carry  interest,  166. 

In  an  action  on  a  single  bill,  &,c.  if  defendant  makes  no  defence,  clerk  may  calculate  interest  without 
a  writ  of  inquirj'^,  167. 


INDEX. 


673 


INTEREST,  {Coniirmed.) 

Guardians  to  account  with  their  wards  for  compound  interest,  and  the  bonds  which  they  take  for 
ward's  money  shall  also  bear  compound  interest,  310. 
INTERNAL  IMPROVEMENTS. 

Fund  for  internal  improvements  established,  346. 

Of  what  it  shall  consist,  347. 

Board  of  internal  improvement  incorporated,  347. 
may  appoint  a  secretary,  347. 

Power  of  the  board  to  make  rules,  tfec,  347. 

Their  duty  in  making  contracts,  347. 

Their  power  in  subscribing  to  public  works,  347. 

Fund  to  be  deposited  in  the  treasury,  and  to  be  drawn  for  by  the  board,  348. 

The  board  to  keep  a  record  of  their  proceedings,  and  report  to  the  General  Assembly,  348. 

The  State  to  be  a  stockholder  in  any  company  to  the  amount  she  may  advance,  348. 

The  surplus  revenue  received  from  the  United  States  appropriated  in  part  to  the  fund  for  internal 
improvement,  349. 

Who  to  constitute  tlie  board  of  internal  improvements,  349. 

Meetings  of  the  board— Compensation  of  the  members,  350. 

Public  treasurer  to  keep  the  accounts — May  employ  a  clerk  for  that  purpose,  350. 

Moneys  belonging  to  the  fund  to  be  deposited  in  the  banks,  350- 

State,  upon  certain  events,  to  subscribe  to  certain  rail  road  companies,  350. 

Payments  upon  such  subscriptions,  how  to  be  made,  350. 

Board  to  lend  out  the  money  until  such  subscriptions  are  wanted,  351 . 

In  what  event  the  State  shall  be  released  from  its  obligations  to  subscribe,  351. 

Surplus  revenue  of  the  United  States  only  pledged  for  such  subscriptions,  351. 

Governor  to  cause  a  publication  of  the  payment  of  any  subscription,  351. 

Profits  of  the  State's  subscription  to  be  added  to  the  literary  fund,  351. 

One  hundred  thousand  dollars  from  the  internal  improvement  fund  to  be  appropriated  to  the  contin- 
gent expenses  of  the  State  government,  352. 

The  act  in  aid  of  internal  improvements  to  be  in  force  from  its  ratification,  352. 

Accounts  of  the  literary  and  internal  improvement  funds  to  pass  through  comptroller's  office,  603. 
INTESTATE'S  ESTATE. 

Intestate's  estate,  how  to  be  distributed,  368,  615. 

Children  advanced,  but  not  to  full  amount,  to  have  their  shares  made  equal,  368. 

Representation  not  to  be  admitted  amongst  collaterals  beyond  brothers'  and  sisters'  children,  368. 

Children  advanced  to  account  for  the  same,  369. 

Child  refusing  to  account,  not  entitled,  369. 

Illegitimate  children  entitled  to  a  share  of  their  mother's  personal  property,  369. 

When  an  illegitimate  child  dies  without  issue,  how  his  personal  property  shall  be  distributed,  369. 

Distributive  shares  of  intestates'  estates,  &c.  recoverable  by  petition  in  the  county  or  superior  court, 
369. 

Rules  and  methods  to  be  observed  on  such  petitions,  369,  370. 

Power  of  the  court  of  equity,  as  to  orphans  and  their  estates,  not  to  be  affected,  370. 

Provision  for  widows  of  intestates  dying  and  leaving  no  kindred  that  are  known,  616. 

Widow  to  give  bond  to  refund  in  case  any  of  the  next  of  kin  should  appear,  616. 
IRON  WORKS.     Sea  Mines. 

JAILS  AND  JAILERS.     See  Court  Homes,  Prisons  and  Stocks,  Prisoners. 

No  person  to  be  imprisoned  but  in  the  common  jail,  215. 

Sheriff  to  have  the  custody  of  the  jail,  569. 

As  to  the   duty  of  the  jailor  in  regard  to  runaways,  see  Runaicays. 

Fees  of  jailers,  559. 
JEWELLERS.     See  Revenue. 
JOINT  OBLIGATIONS. 

On  joint  obligations,  &c.  of  copartners  and  others,  action  may  be  brought  against  all  or  any  one  or 
more,  165. 

Joint  obligation  shall  survive  against  heirs,  executors,  &c.  of  deceased  obligors,  166. 

How  the  judgment  is  to  be  entered  when  the  suit  is  against  the  executor,  &c.  of  the  deceased  obli- 
gor and  the  survivor,  166. 

VOL.  I.  85 


674 


INDEX. 


JOINT  TENANCY. 

In  joint  tenancy  the  share  of  the  person  dying  shall  not  go  to  the  survivor,  253- 
Proviso  as  to  partners  in  trade,  258- 
JUDGES.     See  Courts,  County  and  Superior,  Courts  of  Equity,  Court,  Supreme. 

Judges  to  be  appointed  by  the  General  Assembly  and  commissioned  by  the  governor  and  hold  their 

offices  during  good  behavior,  13,  21. 
May  be  impeached,  23. 

May  be  removed  from  office  for  mental  or  physical  inability,  23. 
Salaries  not  to  be  diminished  during  their  continuance  in  office,  23. 
Judges  to  take  oaths,  146,  185. 

Oaths  taken  by  superior  court  judges,  to  be  subscribed  and  returned  to  the  secretary  of  state,  146. 
Superior  court  judges  to  allot  the  circuit  among  themselves,  and  publish  the  same,  146- 

may  eichange  circuits,  147. 
How  a  superior  court  judge  shall  deliver  his  charge  to  the  jury,  174. 
Judges  of  the  supreme  court  to  appoint  a  chief  justice,  185. 

to  prescribe  rules  of  practice  for  the  superior  courts,  186. 
Salaries  of  the  judges  of  the  supreme  court,  what  and  when  to  be  paid,  548,  549. 
of  the  superior  courts,  549. 
JUDGMENT  BONDS. 

Judgment  bonds  void  as  to  power  to  enter  judgment,  but  good  as  common  Jaw  or  penal  bonds.  166. 
JUDGMENTS. 

In  actions  for  money  due  by  contract,  except  penal  bonds,  the  jury  must  distinguish  between  prin- 
cipal and  interest ;  and  the  judgment  for  principal  shall  carry  interest,  166. 
In  an  action  on  a  single  bill,  &c.  if  defendant  makes  no  defence,  clerk  may  calculate  interest,  to  be 

included  in  the  judgment,  as  damages,  without  a  writ  of  inquiry,  167. 
Judgment  of  a  court  to  stand  till  reversed,  169. 
No  execution  to  issue  on  a  judgment  after  a  year  and  a  day   without   a  scire  Judas  to  revive  the 

same,  170. 
The  death  of  either  party  between  verdict  and  judgment  not  to  be  assigned  for  error,  if  judgment 

be  entered  within  two  terms  after  verdict,  171. 
Actions  on  justices'  judgments  must  be  brought  within  seven  years,  374. 
Time  within  which  presumption  of  payments  on  judgments,  contracts,  &c.  may  arise,  375. 
JURORS  AND  JURY.     See  Grand  Jury. 

Ancient  mode  of  trial  by  jury  to  remain  sacred,  8. 

County  courts  may  lay  taxes  for  the  payment  of  jurors,  127. 

to  form  a  jury  list  from  the  list  of  taxables,  taking  none  but  persons  well  qualified, 
147. 
Jury  list  to  continue  and  be  examined  every  two  years,  147. 
Number  of  jurors  to  be  drawn  for  the  superior  courts,  and  how  to  be  drawn,  147. 
Number  to  be  drawn  for  the  county  courts,  and  how  to  be  drawn,  148. 
On  failure  of  the  county  courts  to  draw  jurors,  the  sheriif  and  clerk  assisted  by  three  justices  may 

draw  them,  148. 
County  courts  may  dispense  with  a  jury  at  two  of  their  terms,  148. 
Persons  having  suits  in  court  not  to  be  drawn  nor  justices  for  the  county  courts,  148. 
Jurors  how  to  be  summoned— Shall  attend  till  discharged  by  court,  148. 
Tales  jurors  maybe  summoned  when  necessary,  149. 
Penalty  on  jurors  for  not  attending  when  summoned— Shall  have  till  the  succeeding  term  to  make 

excuse,  149. 
Penalty  on  tales  jurors  for  not  attending,  149. 
Jurors  exempt  from  service  of  civil  process,  149. 

Ministers  of  the  gospel  and  regular  physicians  exempt  from  serving  as  jurors,  149. 
Registers  shall  be  exempt  from  serving  on  jurie?,  502. 
Quakers  competent  to  serve  as  jurors  in  criminal  cases,  149. 

How  the  petit  jurors  shall  be  sworn  in  civil  cases — How  in  State  cases  not  capital,  150. 
Proviso  that  the  usual  challenges  shall  not  be  affected,  150. 
Names  of  the  jurors  tn  he  called  over  in  the  hearing  of  the  parties  before  empanelling  them,  when 

each  party  may  challenge  four  peremptorily,  150. 
Constable  to  he  sworn  to  attend  juries,  150. 

Punishment  of  jurors  for  taking  bribes,  und  of  those  who  bribe  them,  199. 
In  capital  cases  the  judge  may  issue  a  special  venire  facias,  218. 


INDEX. 


675 


JURORS  AND  JURY,  (Continued.) 

Penalty  on  the  sheriff  for  not  executing  it  and  the  jurors  for  not  attending,  218. 

In  capital  cases  defendant  may  challenge  thirtyfive  jurors,  and  in  other  cases  four,  and  to  have  the 
assistance  of  counsel  in  challenging,  &c.,  218. 

In  capital  cases  the  State's  counsel  may  challenge  four  jurors  peremptorily,  218. 

Peremptory  challenges  beyond  the  number  allowed  bylaw,  void,  219. 

How  the  petit  jurors  shall  be  sworn  in  cases  not  capital,  220. 

Forms  of  oaths  to  be  taken  by  juries  in  certain  cases,  439. 

Keepers  of  public  mills  to  be  exempt  from  serving  on  juries,  424. 
JUSTICES  OF  THE  PEACE. 

Within  what  time  a  person,  appointed  a  justice,  must  take  the  necessary  oaths  for  qualifying  him- 
self, 353. 

Penalty  for  acting  without  qualifying,  353. 

Form  of  justices'  oath  of  office,  434. 

No  justice,  who  is  a  candidate  for  the  office  of  sheriff,  &c.  shall  vote  or  sit  on  the  bench  at  the  elec- 
tion—Penalty for  so  doing,  353. 

A  justice,  removing  and  remaining  out  of  the  county  twelve  months,  to  lose  his  office,  353. 

Power  of  justices  in  their  counties,  354. 

Justices  not  to  practise  as  attorneys  in  the  county  courts  of  their  own  county,  nor  to  act  as  clerk, 
sheriff,  &c.,  82,  354. 

Accepting  such  appointments  to  vacate  his  office,  and  he  shall  not  act  as  justice  without  a  reappoint- 
ment, 354. 

Justices'  jurisdiction  in  civil  matters,  354. 

Warrants  from  a  justice,  to  whom  to  be  issued  and  when  returnable,  354. 

Officer  to  take  bail  when  required,  354. 

A  defendant  arrested  and  refusing  to  give  bail,  to  be  committed,  355. 

Where  warrants  to  be  tried,  and  duty  of  the  officer  in  relation  thereto,  355. 

Regulations  respecting  bail — How  they  are  to  be  proceeded  against,  355. 

Bail  may  arrest  principal  in  order  to  surrender  him,  355. 

Justice's  execution,  how  to  issue  and  be  returned,  356. 

Defendant  may  stay  execution  by  giving  security,  356. 

How  such  security  to  be  given,  356. 

No  stay  allowed  on  a  former  judgment,  356. 

Justice  may,  upon  sufficient  cause  shown,  postpone  or  continue  a  trial,  356. 

Depositions  of  witnesses,  when  allowed  to  be  read  on  a  trial,  356. 

When  a  judgment  is  obtained  in  the  absence  of  a  party,  within  what  time  and  how  a  new  trial  may 
be  obtained,  357. 

Justice's  execution,  when  returnable,  to  whom  to  issue,  and  against  what  property,  357. 

Justice  to  direct  witnesses  to  be  summoned,  which  shall  be  done  by  the  officer,  &c.,  358. 

Penalty  on  witnesses  for  not  attending,  358. 

Execution  against  a  person  removing  out  of  the  county,  how  to  be  proceeded  on,  358. 

How  a  judgment  of  a  justice  may  be  removed  from  one  county  to  another,  358. 

A  justice  may  accept  an  appointment  under  the  United  States,  358. 

Justice's  process  not  to  abate  for  want  of  form,  358. 

Either  party  may  appeal  from  a  justice's  judgment,  358. 

How  security  for  appeals  to  be  given  and  proceeded  against,  359. 

Justice  to  return  appeals  to  court  on  or  before  the  second  day  of  the  term,  and  to  summon  witnesses, 
359. 

How  and  in  what  time  a  party,  desirous  to  appeal  or  stay  execution,  but  is  unprovided  with  his 
sureties,  shall  proceed  to  obtain  such  appeal  or  stay  of  execution,  359. 

How  a  party  shall  proceed  who  was  unable  to  attend  the  trial  from  sickness  or  other  sufficient 
cause,  359. 

Duty  of  the  justice  and  constable,  upon  such  appeal  being  granted  or  stay  allowed,  359. 

Execution  may  issue  before  the  stay  or  appeal  is  granted,  360. 

Upon  security  given  for  the  stay  or  appeal,  the  officer  must  return  the  execution  to  the  justice, 
360. 

Justices  may  restrain  rioters  and  disturbers  of  the  peace,  360. 

Duty  of  two  justices,  with  the  sheriff,  in  suppressing  unlawful  assemblages,  riots,  &c.,  360. 

The  justices  dwelling  nearest  to  perform  this  duty,  360. 


676  INDEX. 

JUSTICES  OF  THE  PEACE,  {Continued.) 

All  magistrates  to  act  in  suppressing  riots,  &c.,  360. 

Constables  to  serve  notices  in  all  cases  where  they  may  be  required  in  proceedings  before  justices, 

360. 
How  such  notices  to  be  served  and  returned,  361. 
Penalty  on  constables  for  failing  to  serve  notices,  361. 
Notice  may  be  given  and  proved  as  heretofore,  361. 

A  justice  may,  in  certain  cases,  appoint  a  special  constable  to  execute  a  precept,  116. 
Three  justices  may,  in  certain  cases,  appoint  a  coroner,  117. 

Executors  and  administrators  to  have  nine  months  to  plead  in  warrants  before  justices,  278. 
Warrant  to  be  returned  to  court  when  executor  or  administrator  pleads  no  assets,  &c.,  278. 
Costs  in  such  same  as  costs  in  appeals,  278. 

Seven  justices  may  call  out  the  militia  in  case  of  invasion  or  insurrection,  417,  418. 
Three  justices  may  order  out  the  militia  to  suppress  outlawed  or  runaway  slaves,  418. 
In  judgments  before  a  justice,  the  surety  may  dissent  from  the  stay  of  execution,  and  then  shall 

not  be  liable  to  the  surety  for  the  stay,  598. 
Officer,  how  to  collect  in  such  cases,  598. 

For  justice's  power  and  duty  in  examining  and  committing  criminals,  see  Criminal  Proceeding's. 
For  the  duties  of  justices  in  taking  and  returning  tax  lists,  &c.,  see  Revenue. 

LANDS.     See  Revenue,  Draining  Low  Lands,  EntHes  and  Grants,  Executions. 

Contracts  for  the  sale  of  land  must  be  in  writing,  &c.,  290. 
LANDS  OF  DECEASED  DEBTORS. 

In  suits  against  an  executor  or  administrator,  upon  the  plea  of  fully  administered  being  verified ,  how 

the  plaintiff  shall  proceed  to  subject  the  real  estate  in  the  hands  of  the  heirs  or  devisees,  362. 
Heirs  and   devisees  may-contest  the  finding  of  fully  administered,  in  a  collateral  issue  with  the 

executor  or  administrator,  363. 
Such  collateral  issue  to  be  tried  at  or  before  the  second  term,  363. 
When  an  executor,  &c.  fails  to  plead  fully  administered,  &c.,  or  the  plea  is  found  against  him,  and 

he  becomes  insolvent,  how  the  plaintiff  shall  proceed  to  subject  the  real  estate — Proviso  in  cases 

of  collusion,  363. 
Heirs  or  devisees  may  show  that  the  executor,  &c.  has  assets,  or  is  not  insolvent,  364. 
Creditor's  title  to  relief  in  equity  not  affected,  364. 
The  creditor,  on  the  trial  of  the  scire  facias  against  the  heirs,  &c.   shall  recover  the  costs  of  the 

original  suit,  364. 
Where  an  estate  is  indebted  to  the  executor  or  administrator,  how  he  shall  proceed  to  subject  the 

real  estate  when  there  is  no  personal  estate,  364. 
The  scire  facias,  &c.  how  to  be  served  when  the  heirs  or  devisees  are  minors,  364. 
When  the  heirs  or  devisees,  or  any  of  them,  live  out  of  the  State,  and  have  no  guardian  here,  what 

proceedings  shall  be  had,  365. 
How  a  guardian   shall  proceed  when  he  has  notice  of  a  debt  or  demand  against  his  ward,  365. 
Execution  against  the  estate  of  a  minor,  when  and  how  to  issue,  365. 
What  proceedings  shall  be  had  to  subject  the  real  estate  of  a  deceased  debtor  in  the  hands  of 

the  trustees  of  the  university,  365. 
The  president  and  trustees  of  the  university,  liable  in  like  manner  as  heirs  and  devisees,  366. 
Lands  held  for  the  life  of  another,  and  coming  to  the  heirs  by  special  occupancy,  liable  for  the  debts 

of  tenant  for  life,  366,  625. 
Lands  of  deceased  debtors,  how  long  liable  for  the  payment  of  their  debts,  and  within  what  time  a 

conveyance  by  the  heirs  or  devisees  shall  be  void,  as  against  creditors,  366. 
Proviso  as  to  dower,  and  also  as  to  lands  devised  in  trust  to  pay  debts,  366. 
Heirs  or  devisees  selling  after  two  years,  to  be  answerable  to  the  amount  of  the  land  descended  or 

devised,  367. 
Devisees  of  real  estate  void  as  to  creditors,  367. 

Creditors  may  have  joiat  or  several  actions  against  the  heirs  and  devisees,  367. 
LARCENY. 

Additional  punishment  of  grand  larceny,  195. 

Larceny  to  steal  bank  notes,  195. 

Stealing  growing  corn,  &c.  larceny,  196. 

Embezzling  or  stealing  wrecked  property  to  be  larceny,  629. 


INDEX.  677 

LAW. 

What  part  of  the  common  law  shall  be  in  force  in  this  State.  110. 

What  shall  be  evidence  of  the  laws  of  another  state,  263. 

The  printed  copies  of  the  revised  statutes  shall  be  received  as  evidence  of  the  statute  law  of  this 
State,  55. 

Printed  statute  book  evidence  of  private  acts,  263. 

Martin's  collection  of  private  statutes  to  be  evidence,  263. 

Persons  desirous  of  procuring-  the  passage  of  a  private  law,  how  to  proceed,  301. 

Acts  of  the  General  Assembly,  when  to  be  in  force,  301. 
LEAP  YEAR. 

The  increasing  day  in  leap  year,  with  the  day  before,  to  be  accounted  as  one  day  in  all  legal  proceed- 
ings, 170. 
LEASES.     See  Husband  and  Wife,  Recoveries,  Mines. 
LEGACY.     See  Petition. 

LEGITIMATION.     See  Bastardy  aud  Bastard  Children. 
LIBEL. 

In  an  indictment  for  a  libel,  the  defendant  may  give  the  truth  in  evidence,  217. 
LIBRARIAN.     See  Secretary  of  State. 
LITERARY  FUND. 

Of  what  materials  the  literary  fund  is  to  consist,  378. 

The  fund  vested  in  a  corporation,  and  who  shall  compose  that  corporation,  378,  380. 

The  board  may  vest  the  fund  in  any  of  the  banks  of  the  State,  &c.,  379. 

The  fund  to  be  applied  to  the  instruction  of  such  children  as  the  legislature  may  deem  expedient, 
379. 

Board  of  literature  to  be  established— Its  style,  380. 

Governor  to  be  president  of  the  board,  and  to  appoint  the  other  members,  380. 

Swamp  lands  vested  in  said  board,  380.  < 

Other  property  and  funds  vested  in  said  corporation,  380. 

Duty  of  the  board  in  having  the  swamp  lands  surveyed,  drained,  &c.,  380. 

Written  consent  of  individuals  to  be  sufficient  to  vest  titles  to  lands  in  said  board,  331. 

When  owners  of  land  refuse  their  consent,  what  may  be  done  by  said  board,  381. 

Lands  of  individuals,  improved  by  canals,  &c.  to  pay  a  proportion  of  the  costs,  381. 

Board  to  appoint  an  engineer  and  surveyor,  and  may  adopt  rules  for  surveying,  assessing,  &c.,  381. 

Said  corporation  may  enter  upon  any  lands  for  the  purpose  of  surveying,  &c.,  381. 
may  sell  reclaimed  lands,  332. 

What  money,  &c.  the  board  shall  not  expend,  382. 

Two  hundred  thousand  dollars  appropriated  to  their  use,  382. 

The  board  shall  have  other  necessary  rights  and  powers  for  reclaiming  the  swamp  lands,  &c.,  382. 

Governor  to  appoint  three  commissioners  for  the  purpose  of  draining  Mattamuskeet  lake,  382. 

Commissioners  to  locate  and  contract  for  the  cutting  a  canal,  383. 

Reclaimed  land  not  to  be  entered,  383. 

Pay  of  the  conxmissioners,  333. 

Public  treasurer  to  pay  out  of  the  literary  fund,  383. 

Commissioners  to  contract  with  individual  proprietors  for  aid,  383. 
to  report,  &c.,  383. 
to  give  bond,  383. 

Certain  parts  of  the  revised  acts  relating  to  internal  improvement  and  the  literary  fund  repealed, 
384. 

Compensation  of  the  members  of  the  literary  fund  board,  384. 

Board  to  lend  out  certain  moneys  of  the  State  if  the  Cape  Fear  Bank  fails  to  accept  the  amended 
charter,  334. 

Accounts  of  the  literary  and  internal  improvement  funds  to  pass  through  comptroller's  office,  603. 
LIMITATIONS. 

Persons  having  right,  shall  make  claim  to  their  lands  within  seven  years,  or  be  forever  barred,  371. 

Proviso  that  infants,  femes  covert,  and  persons  non  compos  iventis,  may  bring  suit  within  three 
years  after  disabilities  removed,  372. 

Persons  beyond  seas,  within  eight  years  after  their  title  accrued,  372. 

Proviso  for  a  plaintiff  in  ejectment,  whose  judgment  has  been  arrested  or  reversed   for  error,  or 
against  whom  a  verdict  has  been  found,  to  commence  a  new  action  within  one  year,  372. 


678 


INDEX. 


LIMITATIONS,  {Contimied.) 

Twentyone  years'  possession  of  land  under  color  of  title,  and  with  known  boundaries,  to  be  a  bar  to 

the  State,  372. 
Time  within  which  personal  actions  must  be  brought,  372. 
Proviso  in  cases  of  writs  of  error,  or  reversal  of  judgment,  &c.,  373. 
infants,  yemes  covert,  &c.,  373. 
when  the  defendant  is  beyond  sea,  373.    . 
The  limitation  of  personal  actions  to  apply  to  bills,  &c.  after  endorsement,  in  like  manner  as  to 

promissory  notes,  374. 
Time  within  which  pencil  actions  must  be  brought,  374. 
Sureties  to  guardian  bonds  to  be  discharged  after  three  years  from  the  time  the  orphan  comes  of 

age,  374. 
Suits  on  the  bonds  of  sheriffs,  constables,  clerks,  and  clerks  and  masters,  to  be  brought  within  six 

years,  374. 
Fees  due  to  clerks,  sheriffs,  &c.  to  be  collected  within  three  years,  374. 
Actions  on  justices'  judgments  to  be  brought  within  seven  years,  374. 

Creditors  must  claim  within  seven  years  from  the  death  of  the  debtor,  or  be  forever  barred,  375. 
Within  what  time  after  the  qualification  of  executors  or  administrators,  creditors  must  present  their 

claims,  375. 
Proviso  for  infants, ./bttjcs  covert,  &c.,  375. 

when  the  delay  is  at  the  request  of  the  executor  or  administrator,  375. 
Executor  or  administrator  must  have  advertised,  &c.,  375. 
Time  within  which  presumption  of  payment  on  judgments,  &c.  may  arise,  375. 

of  satisfaction  of  mortgages,  &c.  may  arise,  375. 
a  scire  facias  against  bail  on  any  judgment  or  decree  now  existing  must  be  sued 

out,  375. 
a  scire  facias  against  bail  in  any  suit  now  existing,  or  hereafter  to  be  brought, 
must  be  sued  out,  376. 
Proviso  where  the  plaintiff  marries  or  dies  after  judgment,  376. 

for  infants, yemes  co«erf,  &c.,  376. 
Time  not  to  be  reckoned  in  case  of  nonsuit,  arrest  of  judgment,  or  reversal  for  error,  376. 
Adverse  possession  of  a  slave  for  three  years  to  give  title,  376. 
Proviso  as  to  parol  gifts,  376. 

Mortgage  of  personal  estate  must  be  redeemed  within  two  years  after  forfeiture,  376. 
Proviso  that  mortgagees  may  file  their  bills  to  foreclose  at  any  time  after  forfeiture,  377. 

for  mortgagors  becoming  lunatics,  &c.,  377. 
Indictments  for  misdemeanors,  with  certain  exceptions,  must  be  commenced  within  two  years,  216. 
Proviso,  where  the  judgment  is  arrested,  or  a  nolleprosequi  entered,  216. 
LOTTERY. 

Punishment  for  carrying  on  lotteries,  206. 

for  selling  tickets,  &c.  in  lotteries,  206. 
LUMBER.     See  Inspections  and  Inspectors, 

MAD  DOGS. 

Penalty  and  liability  for  not  killing  any  dog  bitten  by  a  mad  dog,  335. 
MAIL  CARRIERS. 

Mail  carriers  may  keep  a  ferry  for  their  own  use,  545. 
MAIMING. 

Malicious  maiming,  how  punishable,  193. 

Unlawful  maiming  without  malice,  how  punishable,  202. 
MANDAMUS.     See  Quo  Warranto  and  Mandamus. 
MARRIAGE. 

Ministers  of  the  gospel  and  justices  of  the  peace  to  celebrate  the  rites  of  matrimony,  336. 

Clerks  of  the  county  courts  to  issue  licenses  to  marry,  upon  taking  bond,  386. 

Who  may  publish  the  bans  of  matrimony,  386. 

Penalty  on  minister  and  justices  for  celebrating  the  rights  of  matrimony  contrary  to  law,  386. 
on  clerks  for  issuing  licenses  contrary  to  law,  3S6. 

White  persons  prohibited  from  marrying  Indians  or  persons  of  color,  386. 

Penalty  on  ministers  or  justices  for  marrying  a  white  person  to  an  Indian  or  person  of  color;  387. 


INDEX. 


679 


MARRIAGE,  {Continued.) 

What  dispostition  to  be  made  of  the  property  of  an  infant  female  under  fifteen   years  of  age  when 

she  has  been  married  contrary  to  law,  387. 
The  trustees  of  such  infant  female's  property  to  give  bond,  387. 
Court  s  power  over  such  trustees,  388. 
How  to  obtain  a  license  when  the  parents  or  guardian  of  an  infant  female  reside  out  of  the  State, 

388. 
Penalty  on  clerks  for  illegally  issuing  a  license  to  marry  an  infant  female  whose  parents,  &c.  reside 

out  of  the  State,  388. 

Marrying  a  female  under  fitteen,  without  the  written  consent  of  her  father,  indictable,  202. 

The  clerk  who  issues  a  license  for  the  marriage  of  a  free  negro,  &c.  with  a  white  person,  and  the 
justice,  &c.  who  marries  such  persons,  shall  be  subject  to  indictment,  208. 

In  case  of  a  divorce,  the  innocent  party  may  marry  again,  241. 

Otherwise  with  regard  to  the  offending  party,  242. 
MARRIAGE  SETTLEMENT. 

Marriage  settlements  to  be  proved  and  registered,  233. 

What  marriage  settlements  shall  be  good  against  creditors,  &c.,  233. 
MATTAMUSKEET  LAKE.     See  Literary  Fund. 
MECKLENBURG  DECLARATION  OF  INDEPENDENCE. 

A  short  narrative  of  it,  1. 

The  declaration,  3. 
MEMBERS  OF  ASSEMBLY.     See  General  Assembly. 
MEMBERS  OF  CONGRESS. 

Senators  in  congress,  how  to  be  chosen,  389. 

How  to  be  commissioned,  389.  .  t-.     u   j-  .  ■  .       .-.i  j. 

The  State  divided  into  districts  for  choosing  representatives  in  congress-Each  district  entitled  to 

one  representative,  389.  . 

Time  and  manner  of  conducting  the  election  of  representatives  to  congress,  390 
Governor  may  order  elections  at  other  than  the  regular  time  m  certain  cases,  390. 
Penalty  on  persons  for  voting  more  than  once  at  an  election,  390. 
Separate  elections  in  counties,  how  to  be  conducted,  390. 

Dutv  of  the  returning  officer  with  regard  to  elections,  390.  ,v         H  ^  » 

ReLm-officersof  the  different  counties  of  the  district  to  meet   and    compare  the  polls,  and  to 

give°a  certificate  of  election  to  the  successful  candidate   391. 

Provision  where  there  is  an  equal  nun.ber  of  votes  for  two  or  more  candidates,  391. 

Governor  to  commission  the  persons  elected  representaUves,  392. 

Returning  officer's  allowance  for  comparing  polls,  392. 

How  and  when  elections  to  be  held    in  cases  of  vacancy,  392. 
MENONI STS.     See  Quakers,  Moravians,  Menonists  and  Dunkards. 
MERCHANTS.     See  Revenue. 

MILITIA 

Who  are  to  be  enrolled  in  the  militia,  and  how  provided,  394- 

Who  are  exempted  from  militia  duty,  394.  ,    ,      on^ 

Members  of  fire  con.panies  and  persons  of  conscientious  scruples  exempt  also,  395. 

Officers  to  enrol  and  make  return  of  exempts,  395. 

Free  persons  of  color  not  to  be  enrolled  except  as  musicians,  395. 

Persons  enrolled  for  duty  to  equip  themselves,  396. 

Forfeitures  for  neglecting  to  equip,  396. 

How  the  infantry  shall  be  divided,  396. 

Rpo-iments  bri-ades  and  divisions,  how  distinguished,  396,  397. 

OffiCrs  of  the  Infantry-Their  grade,  and  how  some  of  them  to  be  appointed,  397,  398. 

Adjutant  general  to  be  appointed,  398. 

Governor  may  appoint  four  aids  de  camp,  398. 

?:Xo-mcr 'foTr'esigning  or  failing  to  equip  themselves  within  twelve  months,  398. 

h"w  major  and  brigadier  generals,  colonels  and  other  field  officers  shall  be  elected,  and  commis- 

HowthT'Lhail  resign,  and  to  whom  notification  of  vacancies  to  be  made,  and  by  whom,  399. 
Certain  officers  to  give  notice  of  their  absence,  400. 


6S0  INDEX. 

MILITIA,  (Continued.) 

Officers  to  deliver  to  their  successors  money  or  papers,  400. 

Rules  of  discipline,  400. 

Captains'  districts,  how  to  be  laid  off,  400. 

Boundary  lines  of  regiments  in  the  same  county,  how  they  may  be  altered  and  regulated,  401. 
^-Regulations  as  to  company  musters,  401. 

Company  courts  martial,  how  to  proceed,  401. 

Appeals  allowed  from  company  courts  martial,  402. 

Company  musicians,  how  appointed,  and  their  privileges,  402. 

Overseers  of  roads  not  to  order  out  hands  on  days  of  company  muster,  402. 

Captains  of  companies  to  make  returns,  402. 
^^...-Jlegimental  or  battalion  musters,  402. 

Penalty  on  officers  for  failing  to  attend  reviews  or  musters,  403. 

Commandants  of  regiments,  &c.  to  give  notice  of  reviews  or  musters,  403. 

Commissioned  officers  of  regiments,  &c.  to  meet  for  exercise  the  day  before  review  or  muster,  403. 

Penalties  on  officers  and  privates  for  misbehaving,  403. 

Persons  on  muster  ground  failing  to  do  duty  to  be  arrested,  404. 

Officers  and  privates  attending  musters,  exempt  from  arrest  in  civil  cases,  404.  ' 

Not  to  pay  tolls  or  ferriages  in  going  to  or  returning  from  musters  and  reviews,  404. 

Parents,  &c.  liable  for  fines,  404. 

Regimental  and  battalion  courts  martial — Their  power  and  duties,  404. 

Judge  advocate  to  be  appointed — His  duty,  405. 

Duty  of  pay  masters,  405. 

Officers  holdmg  a  court  martial  must  take  an  oath,  406. 

Proceedings  at  courts  martial  against  delinquents,  406. 

Courts  martial  may  adjourn,  &c.,  406. 

Duties  of  commanding  officers  of  regiments  and  companies  as  to  fines,  407. 

Returns  to  be  made  by  the  commandants  of  regiments,  407. 

Duties  of  major  and  brigadier  generals,  as  to  reviews,  407. 

Returns  to  be  made  by  brigadier  and  major  generals,  407. 

Penalty  on  a  general  officer,  or  commandant  of  a  regiment,  for  failing  to  review  or  muster,  to  make 
returns,  or  to  be  properly  equipped,  407. 

Duty  of  the  adjutant  general — Penalties  for  failing  to  perform  his  duty,  403. 

In  certain  cases  returns  may  be  made,  and  orders  issued  through  the  post  office,  409. 

Governor  may  remit  fines  and  penalties,  409. 

Regiments  of  cavalry,  how  to  be  formed,  officered,  equipped,  &c.,  409. 

Troops  of  cavalry,  when  to  muster,  how  returns  to  be  made,  and  who  to  command  when  mustering 
with  infantry,  410. 

Field  officers  of  cavalry  to  review  and  make  returns,  410. 

Cavalry  courts  martial  to  be  held,  410. 

Fines  of  cavalry  officers  and  privates  same  as  in  the  infantry,  411. 

How  cavalry  fines  to  be  appropriated,  411. 

Duty  of  adjutant  of  the  regiment,  411. 

Certain  sections  in  relation  to  the  infantry,  to  apply  to  the  cavalry,  411. 

Provision  when  the  number  of  a  cavalry  troop  shall  be  less  than  required  by  law,  411. 

Volunteer  companies  of  artillery,  light  infantry,  grenadiers  or  riflemen  may  be  formed,  412. 

Such  companies  may  choose  their  own  uniform,  412. 

Such  companies  to  be  under  the  command  of  the  commandant  of  the  regiment,  and  to  do  duty  as 
other  companies,  4l2. 

A  regiment  of  volunteer  companies  may  be  formed — Field  officers,  how  chosen,  412. 

How  captains,  lieutenants  and  non-commissioned  officers,  of  such  companies  shall  be  elected  or  ap- 
pointed, 412. 

Such  companies  shall  muster  once  in  three  months — May  adopt  rules  and  regulations  for  their  own 
government,  412. 

Officers  of  volunteer  regiments  to  make  return,  412. 

Persons  enrolled  in  volunteer  companies  not  to  return  to  the  infantry  except  by  permission,  &c.,412. 

Volunteers  bound  to  serve  in  the  infantry  until  they  equip  themselves,  413. 

Officers  of  volunteer  regiments  to  review,  413. 

How  vacancies  among  the  field  officers  of  volunteer  regiments  shall  be  filled,  413. 


INDEX. 


681 


MILITIA,  (Continued.) 

Certain  sections  in  relation  to  the  infantry,  to  apply  to  the  artillery,  &c.,  413. 

General  and  other  courts  martial  for  the  trial  of  officers,  how  to  be  appointed  and  held,  413. 

Officers  of  general  and  other  courts  martial,  how  to  be  selected,  414. 

Of  what  rank  the  officers  shall  be,  414. 

Officers  for  such  courts  martial  to  be  regularly  detailed,  414. 

How  such  officers  shall  be  detailed,  414. 

Courts  martial  for  the  trial  of  officers,  how  constituted,  415. 

Officers  of  such  court  martial,  how  to  take  rank — Such  officers  to  be  sworn,  415. 

How  witnesses  to  attend  such  courts  martial  shall  be  summoned,  415. 

Such  witnesses  to  be  sworn  or  affirmed,  415.  ■  , 

Rules  for  the  government  of  such  courts  martial,  416. 

Duty  of  the  judge  advocate  in  courts  martial  for  the  trial  of  officers,  416. 

Proceedings  againt  officers  arrested  and  refusing  to  attend,  416. 

Perjury  before  courts  martial,  how  punishable,  416. 

For  what  conduct  an  officer  may  be  cashiered,  417- 

Detachments  of  militia  for  the  United  States'  service,  417. 

Substitutes  may  be  received  in  such  detachmtuts,  417. 

Vacancies  under  the  rank  of  field  officers  in  detachments,  how  to  be  supplied,  417. 

A  militia  man  after  one  tour,  to  be  exempt  from  a  second  draft,  417. 

Penalty  on  militia  men  for  refusing  to  perform  duty,  when  ordered  out  in  aid  of  the  civil  authority, 

417. 
Seven  justices  may  call  out  the  militia  in  case  of  invasion  or  insurrection,  417. 
Duty  of  the  commanding  officer  on  such  requisition,  418. 
Commanding  officer  of  the  regiment  called  out  to  notify  his  superior  officer,  and  he  to  notify  the 

governor,  418. 
Three  justices  may  order  out  the  militia  to  suppress  outlawed  or  runaway  slaves,  418. 
Pay  of  the  militia  when  in  service,  418. 

Punishment  of  officers  and  privates  for  refusing  to  appear,  on  call  or  alarm  given,  419. 
Punishment  for  desertion,  419. 

Repealing  clause  to  the  act  concerning  the  militia,  419. 

Adjutant  general  to  have  copies  of  the  act  concerning  the  militia  printed  and  distributed,  419. 
Wardens  of  the  poor  to  support  the  families  of  poor  militia  men  absent  on  service,  475. 
Governor  may  distribute  the  public  arms  to  volunteer  companies,  upon  the  commanding  officer  giv- 
ing bond,  485. 
The  police  authorities  of  a  town,  or  the  senior  colonel  of  a  county,  may  petition  for  and  receive 

arms,  upon  giving  bond,  435. 
How  the  public  arms  may  be  distributed  in  cases  of  invasion  or  insurrection,  485. 
Duty  of  the  militia  officers  on  receiving  the  public  arms,  485. 
Penalty  for  not  keeping  the  public  arms  in  order,  436. 
Penalty  for  selling  or  embezzling  the  public  arms,  486. 
On  the  death,  &c.  of  a  private,  his  arms  to  be  taken  and  delivered  to  the  person  succeeding  him, 

486. 
Militia  officers  to  demand  the  public  arms,  when  in  the  possession  of  those  to  whom  they  were  not 

distributed,  486. 
Detachments  ordered  into  service  maybe  furnished  with  arms,  486. 
The  same  regulations  prescribed  for  the  arms   hereafter  to  be  distributed,  to  be  applied  to  those 

heretofore  distributed,  487. 
Upon  the  dissolution  of  a  volunteer  company,  the  arms  to  be  delivered  to  the  colonel,  488. 
MILLS  AND  MILLERS. 

What  shall  be  public  mills,  420. 

Persons  wishing  to  build  public  mills,  how  to  proceed,  when  they  own  land  only  one  side  of  the 

stream,  420. 
Persons  obtaining  an  order  to  build  a  mill,  how  to  obtain  a  title  to  the  land  on  which  it  is  built,  421. 
When  an  order  for  one  mill  is  granted,  another  shall  not  be  granted  within  two  miles  on  the  same 

tract  of  land — Not  to  overflow  another  or  create  a  nuisance,  421. 
Within  what  time  the  mill  is  to  be  commenced  and  finished,  421. 
What  time  infants,  &c.  may  have  for  rebuilding  mills  burnt  or  destroyed,  421. 
Millers  shall  grind  according  to  turn,  421. 

VOL.   I.  86  ' 


682 


INDEX. 


MILLS  AND  MILLERS,  {Continued.) 
What  toll  they  may  take,  421. 

What  measures  millers  shall  keep  in  their  mills — Keeping  false  measures  indictable,  422. 
Persons  injured  by  the  erection  of  mills,  how  to  proceed  to  recover  damages,  422. 
When  notice  is  served  upon  the  tenant  in  possession  of  a  mill,  instead  of  the  owner,  how  such  te- 

nani  is  to  proceed,  422. 
If  the  tenant  fail  to  file  an  affidavit,  he  is  to  be  taken  as  owner,  422. 
When  the  owner  appears,  he  is,  upon  giving  bond,  to  be  admitted  co-defendant  with  the  tenant 

422. 
Upon  the  hearing  of  the  petition,  what  proceedings  are  to  be  had  for  the  purpose  of  having  the 
damages  assessed,  the  verdict  of  the  jury  returned,  and  how  long  such  verdict  shall  be  in  force, 
423. 
Provision  in  cases  where  the  damages  are  assessed  as  high  as  twenty  dollars,  423. 
Provision  as  to  costs  where  the  verdict  is,  that  there  is  no  damage,  or  where  the  damages  are  under 

five  dollars,  424. 
How  execution  shall  issue  against  the  defendant  for  the  damages,  424. 
What  pay  the  sheriff  and  jurors  shall  be  entitled  to,  424. 
Upon  appeals,  the  trial  to  be  had  at  bar  in  the  .superior  court,  424. 
Plaintiff  to  pay  costs  if  he  appeals,  and  fails  to  recover  higher  damages ,  424. 
Keepers  of  public  mills  to  be  exempt  from  serving  on  juries  or  working  on  roads,  424. 
Appeals  allowed  in  cases  of  petitions  for  damages  caused  by  the  erection  of  public  mills,  62. 
Owners  of  water  mills  subject  to  indictment  for  not  keeping  up  bridges  connected  with  their  mills, 

200. 
Millers  to  be  exempt  from  militia  duty,  395. 
Owners  of  water  mills  situate  on  public  roads,  to  keep  up  bridges  connected  with  their  mill  dams, 

543. 
Penalty  on  owners  of  water  mills  for  failing  to  keep  up  bridges,  543. 
MINES. 

Three  thousand  acres  of  land  granted  for  the  use  of  iron  works,  as  a  bounty,  425. 
Entry  taker  to  make  out  a  copy  of  the  bounty  land,  and  transmit  it  to  the  county  court,  425. 
Court  to  appoint  a  jury  to  view  the  bounty  lands — Jury  to  make  their  return  and  the  same  to  be  re- 
corded, 425. 
Conditions  to  entitle  the  proprietors  to  the  land  granted,  425. 
Manner  in  which  the  grants  are  to  be  obtained,  426. 
Proviso,  that  the  land  shall  revert  upon  failure  to  erect  the  works,  426. 
Bounty  lands  to  be  exempt  from  taxation  for  ten  years,  426. 

Lessors  of  gold  mines  not  to  be  taken  as  partners  with  their  lessees,  unless  they  so  contract,  426. 
MINISTERS  OF  THE  GOSPEL.     See  JaroTs  and  Jurxj,  Marriage. 
MONEY  REMAINING  IN  THE  HANDS  OF  CLERKS  AND  SHERIFFS. 

Clerks  of  supreme,  superior  and  county  courts,  and  clerks  and  masters  in  equity,  to  make  statements 

and  returns  of  all  moneys  remaining  in  their  hands  for  three  years,  427. 
To  whom  such  moneys  shall  he  paid  over,  subject  to  be  reclaimed  by  the  rightful  owner,  427. 
Clerks,  and  clerks  and  masters,  failing  to  pay  over  such  moneys,  to  forfeit  one  thousand  dollars, 

427. 
Clerks,  and  clerks  and  masters,  failing  to  pay  over  moneys   remaining  in  their  hands,  how  to  be 

proceeded  against,  428. 
Sheriffs  and  coroners  to  pay  costs  on  executions  to  the  clerks,  428. 

Sheriffs  to  account  and  pay  over  moneys  in  their  hands  in  the  same  manner  as  clerks,  &c.,  423. 
Clerks,  &c.  to  set  up  a  statement  of  their  returns  in  the  court  house  for  six  months  before  making 

such  returns,  428. 
Penalty  on  clerks,  &c.  for  failing  to  set  up  statements,  428. 
MORAVIANS.     See  (Quakers,  Moravians,  Menonists  and  Dunkards. 
MORTGAGES  AND  DEEDS  IN  TRUST. 

No  mortgage  or  deed  in  trust  good  against  creditors  unless  registered  within  six  months,  231. 
Mortgage  or  deed  in  trust  good  against  creditors,  &c.  only  from  the  date  of  the  registration,  231.' 
Clerks  of  the  county  courts  authorized  to  take  probate  of  mortgages  and  deeds  in  trust,  232. 
Register  to  endorse  on  each  mortgage  or  deed  in  trust  the  day  he  received  it,  and  to  register  in  the 
order  of  delivery,  232. 


INDEX. 


683 


MORTGAGES  AND  DEEDS  IN  TRUST,  (Continued.) 

What  remedy  the  last  mortgagee  shall  have  when  there  is  more  than  one  mortgage  in  force  at  the 

same  time,  232. 
Where  an  action  is  brought  to  recover  money  secured  by  mortgage,  or  for  the  mortgaged  property, 

the  defendant  may  be  discharged  by  bringing  the  money  due  on  the  mortgage  into  court,  232. 
Proviso  where  the  defendant  denies  the  right  of  redemption,  233. 
Infant  trustees,  how  to  convey,  234. 

The  equity  of  redemption  and  the  legal  right  of  redemption  in  lands,  liable  to  execution,  266. 
Sheriff  to  set  forth  in  his  deed  that  the  land  was  under  mortgage,  266. 
Time  within  which  presumption  of  satisfaction  of  mortgages,  &c.  may  arise,  375. 
Mortgage  of  personal  estate  must  be  redeemed  within  two  years  after  forfeiture,  376. 
Proviso,  that  mortgagees  may  file  their  bills  to  foreclose  at  any  time  after  forfeiture,  377. 
Proviso  for  mortgagor's  becoming  lunatic,  &c.,  377. 
NAMES. 

Superior  courts  may,  upon  petition,  change  the  names  of  any  persons  desiring  it,  429. 
NAVIGATION.     See  Pilots  and  Commissioners  of  Navigation. 
NEGOTIABLE  SECURITIES.     See  Bills,  Bonds  and  Promissory  Notes. 
NEW  TRIAL. 

New  trial  may  be  granted  by  the  court  where  the  defendant  is  convicted,  219; 
NOTARIES. 

Governor  to  appoint  one  or  more  notaries  in  each  county,  429. 
Notaries  to  take  oaths,  429. 

Clerks  and  clerks  and  masters  may  act  as  notaries,  430. 
Fees  of  clerks,  &c.  when  acting  as  notaries,  430. 
NOTICES. 

Sheriff,  &c.  to  serve  all  notices  that  may  be  necessary,  in  any  proceeding  in  law  or  equity,  172. 
How  notices  to  be  served,  173. 

Penalty  on  officer  for  failing  to  serve  notices,  or  for  making  a  false  return,  173. 
Notice  may  be  given  and  proved  as  heretofore,  173. 

Sheriffs  to  serve  notices  issuing  from  clerks  and  masters  in  all  references  made  to  them,  &c.  181. 
Constables  to  serve  all  notices  that  may  be  required  in  cases  before  justices,  360. 
How  such  notice  to  be  served  and  returned,  361. 
Penalty  on  constables  for  failing  to  serve  notices,  361. 
Notice  may  be  given  and  proved  as  heretofore,  361. 
OATHS. 

Oaths,  how  to  be  administered,  431. 

A  person  conscientiously  scrupulous  of  laying  his  hands  on  the  scriptures,  to  be  sworn  with  an  uplift- 
ed hand,  431. 
Quakers,  Moravians,  Dunkards  and  Menonists  to  be  affirmed,  432. 
Their  affirmation  to  be  received  in  all  cases,  civil  and  criminal,  432. 

Oaths  or  affirmations  to  support  the  constitution  of  this  State,  to  be  taken  by  all  officers,  432. 
Also  an  oath  to  support  the  constitution  of  the  United  States,  to  be  taken  by  all  officers  and  members 

of  assembly,  432. 
Form  of  the  official  oath  of  the  governor,  433. 

of  the  secretary  of  state,  433. 

of  the  public  treasurer,  433. 

of  the  comptroller,  433. 

of  a  judge  of  the  supreme  court,  433. 

of  a  judge  of  the  superior  courts,  433. 

of  the  attorney  general  and  solicitors,  434. 

of  a  justice  of  the  peace,  434. 

of  the  clerk  of  the  supreme  court,  435. 

of  a  clerk  of  the  superior  courts,  436, 

of  a  clerk  and  master,  435. 

of  a  clerk  of  the  county  courts,  435. 

of  a  sheriff,  435. 

of  a  coroner,  436. 

of  a  county  attorney,  436. 

of  a  constable,  436. 


684 


INDEX. 


OATHS,  (Continued.) 

Form  of  the  official  oath  of  a  county  trustee,  436. 
of  a  register,  436. 
of  a  standard  keeper,  436. 
of  a  ranger,  437. 
of  an  entry  taker,  437. 
of  a  county  surveyor,  437. 
of  a  processioner,  437. 
of  inspectors  of  tobacco,  437. 
of  a  picker  of  tobacco,  437. 
of  an  inspector  of  flour,  437. 

of  inspectors  of  other  articles  than  tobacco  and  flour,  438. 
of  an  attorney  at  law,  438. 
The  oath  of  a  witness  on  a  capital  trial,  438. 
of  a  witness  on  a  traverse,  438. 
of  a  witness  in  civil  cases,  438. 
of  a  witness  to  prove  a  will,  438. 
of  a  witness  to  be  sent  to  the  grand  jury,  438. 
of  a  petit  jury  in  a  capital  case,  439. 
of  a  petit  jury  in  criminal  cases,  not  capital,  439. 
of  a  jury  in  civil  cases,  439. 
of  a  petit  jury  laying  off  do  wer,  439. 
of  a  jury  to  assess  damages  for  overflowing  lands,  439. 
of  the  foreman  of  the  grand  jury,  439. 
of  the  other  grand  jurors,  439. 
of  a  constable  charged  with  a  jury,  440. 
of  a  constable  to  attend  the  grand  jury,  440. 
of  an  executor,  440. 
of  an  administrator,  440. 

of  commissioners  dividing  and  allotting  real  estate,  440. 
of  commissioners  allotting  a  year's  provisions,  440. 
of  valuers  of  strays,  440. 
Book  debt  oath,  440. 

for  an  executor  or  administrator,  441. 
Deputies  to  administer  oaths  wherever  their  principals  are  authorized  to  do  so,  441. 
Sheriff's  oath  on  settling  his   accounts  with  the  comptroller — Also  his  oath  as  to  the  collection  of 

delinquent  taxes,  530. 
Insolvent  debtors'  oath,  321,  323. 
OFFICES. 

Penally  for  holding  an  office  both  under  this  State  and  any  other  state  or  the  United  States,  441. 
Proviso  as  to  justices  of  peace,  and  militia  officers,  442. 
Contracts  for  the  sale  of  offices,  void,  442. 

Buying  and  selling  offices  prohibited,  and  how  punishable,  198.  '' 

No  officer  of  the  United  States  to  be  a  commissioner  of  wrecks,  627. 
OFFICIAL  BONDS. 

Suits  on  the  official  bonds  of  clerks,  sheriffs,  &c.  may  be  brought  by  the  party  injured,  443. 

Declaration  must  shew  in  whose  behalf  the  suit  is  brought,  443. 

Person  injured  may  at  his  election  sue  the  officer  in  an  action  on  the  case,  443. 

Remedy  before  a  justice  against  officers  and  their  sureties  for  neglect  to  pay  over  moneys  withia 

the  jurisdiction  of  a  justice,  443. 
Summary  remedy  in  court  against  officers  failing  to  pay  moneys  received,  443. 
Twelve  per  cent,  damages  allowed  on  money  unlawfully  detained  by  an  officer,  444. 
Clerks  of  the  county  court  to  record  the  names  of  the  justices  present  at  the  qualification  of  officers, 

444. 
Such  justices  failing  to  take  bond,  are  to  be  held  securities  themselves,  444. 
Copy  of  the  record  to  be  evidence  against  them,  444. 

Suits  on  the  bonds  of  sheriffs,  clerks,  &c.  must  be  brought  within  six  years,  374.  « 

ORDINARIES. 

Retailers  of  liquors  to  sell  by  sealed  measures,  445. 


INDEX. 


685 


ORDINARIES,  (Continued.) 

How  a  license  to  keep  an  ordinary  may  be  obtained,  445. 

Bond  to  be  given,  445. 

How  license  to  issue,  and  how  long  to  continue  in  force,  446. 

Justices  to  establish  rates  of  charges,  446. 

Duty  of  ordinary  keepers,  446. 

No  ordinary  keeper  to  give  credit  for  liquors  beyond  ten  dollars — Proviso,  446. 

Penalty  on  ordinary  keepers  for  entertaining  slaves  or  sailors,  446. 

Persons  wishing  to  obtain  licenses  to  retail  spirituous  liquors,  how  to  proceed,  447. 

Tax  on  tavern  keepers,  517. 

Keepers  of  public  ferries  to  keep  up  a  house  of  entertainment  at  their  ferries,  545. 
ORPHANS.     See  Guardian  and  Ward. 
OVERSEERS. 

Overseer  leaving  his  employer  to  forfeit  his  wages,  447. 
OVERSEERS  OF  ROADS,  RIVERS  AND  CREEKS.     See  Roads,   Bridges  and  Ferries,   Rivers 
and  Creeks. 

Overseers  of  roads  to  be  indicted  for  neglect  of  duty,  200. 
OYSTERS. 

Penalty  for  transporting  oysters  out  of  the  State,  448. 

Offenders  to  give  bail,  448. 

Duty  of  magistrates  in  apprehending  offenders,  448. 

Penalty  for  using  any  instrument  except  tongs  in  taking  oysters,  449. 

PARTITION. 

One  or  more  tenants  in  common  may  file  a  petition  in  the  county  or  superior  court  for  a  division  of 

real  estate — Proceedings  thereon,  450. 
The  petition  to  be  filed  in  the  superior  court  when  the  land  lies  in  different  counties,  450. 
If  one  co-tenant  is  absent  from  the  State,  advertisement  must  be  made,  451. 
Commissioners  to  divide  the  land  as  equally  as  possible,  451. 
Sums  charged  on  dividends  of  minors,  not  to  be  paid  till  they  come  of  age,  451. 

to  bear  interest,  451. 
Guardian  of  minors  shall  pay  when  he  has  assets,  451. 
Sheriff  shall  summon  commissioners  and  swear  them,  451. 
Form  of  the  oath   to  be  taken  by  them,  440. 
Pay  of  the  commissioners,  451. 

Court  to  order  by  whom  the  costs  of  the  petition  shall  be  paid,  451. 
Court  of  equity  may  order  a  sale  of  real  estate  for  division,  when  it  cannot  be  divided   otherwise 

without  prejudice  to  the  parties,  452. 
Court  of  equity  may  order  a  sale  of  real   estate  required  for  public  purposes,  upon   the  petition  of 

the  tenants  in  common,  452. 
Where  the  sale  of  real  estate  shall  be  made  when  ordered  by  the  court  of  equity,  452. 
The  deed  of  the  clerk  and  master  shall  convey  title,  452. 
Where  there  is  dower  on  the  land,  the  court  may  decree  a  sale,  and  apportion  the  dower  interest, 

452. 
Proceedings  where  lands  descended  or  devised  lie  partly  in  this  State  and  partly  in  another  state, 

453. 
The  court  may  decree  a  partition  of  such  lands,  453.  ' 

Court  shall  appoint  commissioners — Duty  of  such  commissioners  in  making  a   partition  of  such 

lands,  454. 
What  final  decree  the  court  may  make,  454. 

When  a  decree  for  partition  in  another  state  may  be  enforced  in  this,  455. 
Court  to  judge  whether  another  state  has  passed  a  law  in  conformity  to  this,  456. 
Time  allowed  \.o  femes  covert,  infants,  &c.  to  object  to  any  final  decree,  &c.,  456. 
How  a  partition  of  personal  property  among  tenants  in  common  may  be  made,  456. 
When  personal  property  may  be  sold  for  a  division,  457. 

Court  may  appoint  a  guardian  to  an  infant,  &c.  for  the  purposes  of  such  division  or  sale,  457. 
Compensation  of  the  freeholders,  clerk  or  other  commissioner,  457. 
PATENTS.     See  Entries  and  Grants. 

Persons  aggrieved  by  the  issuing  of  patents,  how  to  proceed,  255. 
Proceedings  and  judgment  of  the  court  in  such  cases,  256. 


686 


INDEX. 


PATENTS,  (Continued.) 

Copy  to  be  filed  in  the  secretary's  office,  256. 

Whenever  the  State  wishes  to  repeal  letters  patents  or  grants,  supreme  court  to  have  original  juris- 
diction, 256. 

What  decree  the  court  may  make,  256. 

Cases  now  in  the  superior  court,  may  be  removed  to  the  supreme  court,  256. 
PATROL. 

County  courts  to  appoint  a  patrol  committee,  who  shall  employ  a  patrol,  458.. 

The  county  courts  may  also  appoint  a  patrol,  458. 

Penalty  on  the  patrol  committee  for  refusing  to  act,  458. 

Duties  and  powers  of  the  patrol,  458. 

County  courts  to  adopt  rules  for  the  regulation  of  the  patrol,  459. 

Patrol  committee  may  discharge  patrollers  and  appoint  others,  459. 

Penalty  on  patrol  for  refusing  to  act,  459. 

Compensation  to  patrol,  459. 

County  courts  may  lay  taxes  for  the  payment  of  the  patrol,  126. 
PEDLERS.     See  Revenue. 

Punishment  for  hawking  and  peddling  without  a  license,  202. 

Free  negroes,  &c.  not  to  hawk  or  peddle  without  a  license,  591. 
PENSIONS. 

Pensions  allowed  to  persons  disabled  in  the  militia  service,  460. 

How  such  pensions  to  be  obtained,  460. 

Pensions  allowed  to  the  widows  and  orphans  of  such  disabled  militia  men,  460. 
PERJURY. 

Perjury,  how  punishable,  203. 

Subornation  of  perjury,  how  punishable,  203. 

Proviso  as  to  cutting  off  ears,  203. 
PETITION. 

Petitions  may  be  filed  in  vacation,  167. 

Clerk  to  issue  a  capias,  upon  petitioner's  making  afiidavit  of  the  amount  of  his  demand,  167. 

When  a  petition  is  served  upon  one  of  several  defendants  and  the  others  reside  out  of  the  State,  the 
court  shall  order  publication  to  be  made,  167. 

Court  may  order  the  clerk  to  audit  and  settle  accounts,  167. 

Anv  two  justices  may  take  depositions  to  be  read  on  petitions,  168. 

Fees  of  clerk  on  petitions,  168. 

Legacies,  filial  portions,  and  distributive   shares  of  intestates's  estates,  recoverable  by  petition   to 
the  superior  or  county  court,  369. 

Rules  and  method  to  be  observed  in  such  petitions,  369,  370. 

Power  of  the  court  of  equity  as  to  orphans  and  their  estates  not  to  be  affected,  370. 
PETITION  FOR  REHEARING,     ^et  Bill  of  Review. 
PHYSICIANS.   See  Jurors  and  Jury,  Cluarantine  and  Health,  Militia. 
PILOTS  AND  COMMISSIONERS  OF  NAVIGATION. 

Commissioners  of  navigation  for  Cape  Fear,  how  appointed,  461. 

Such  commissioners  to  appoint  a  clerk,  461. 

Powers  of  the  commissioners,  461. 

Power  of  the  said  commissioners  as  to  pilotage,  462. 

Harbor  master  to  be  appointed,  462. 

Commissioners  to  appoint  pilots,  462. 

Bond  to  be  given  by  pilots,  462. 

Pilots  may  be  removed  for  misbehavior,  462. 

Penalty  on  persons  not  authorized  as  pilots  for  acting  as  such — Proviso  as  to  the  port   of  Bruns- 
wick, 463. 

Commissioners  to  decide  disputes  between  masters  of  vessels  and  pilots,  463. 

No  stay  of  execution  allowed— But  either  party  may  appeal,  463. 

Notice  to  be  given  when  the  rates  of  pilotage  are  altered,  464. 

Commissioners  to  prescribe  the  number  of  boats  for  pilots,  464. 

Rights  of  pilots  as  to  the  Main  and  New  Inlet  bars  of  Cape  Fear,  464. 

Pilots  to  keep  apprentices,    464. 

Penalty  on  pilots  for  not  attending  when  requested,  464. 

Proviso  as  to  bar  pilots,  465. 


INDEX.  687 

PILOTS  AND  COMMISSIONERS  OF  NAVIGATION,  {Continued.) 

Master  to  pay  pilots  for  detention,  465. 

Penalty  on  pilots  for  refusing  or  neglecting  to  go  to  a  vessel  shewing  a  signal,  465. 

Pilots  entitled  to  full  pilotage,  though  the  master  refuse  to  take  them,  465. 

When  pilots  entitled  to  only  one  third  fees,  465. 

Rate  of  charge  when  vessel  deepens  or  lightens,  466. 

Bar  pilots  to  have  a  telescope  or  spy  glass,  466. 

What  vessels  exempt  from  pilotage,  466. 

Throwing  ballast,  &c.  into  the  river,  prohibited,  466. 

Penalty  on  captain  of  a  vessel  from  which  ballast  is  so  thrown,  466. 

Duty  and  powers  of  the  commissioners  in  this  respect,  466. 

Penalty  on  branch  pilots  for  not  informing  when  ballast  is  thrown  into  the  river,  466. 

Commissioners  of  navigation  for  Newbern,  Washington  and  Edenton,  appointed,  467. 

Power  of  such  commissioners,  467. 

Board  of  commissioners  appointed  for  Ocracock— Their  duty  in  regard  to  pilots,  467. 

Their  compensation,  467. 

Oath  to  be  taken  by  them,  468. 

What  vessels  shall  be  compelled  to  take  a  pilot,  468. 

Pilot  becoming  incompetent,  his  branch  may  be  revoked,  468. 

Commissioners  of  navigation  for  Old  Topsail  inlet — For  Bogue  inlet,  468. 

The  duty  and  power  of  such  commissioners,  468. 

Penally  for  piloting  without  a  branch,  468. 

Bonds  to  be  given  by  pilots,  &c.,  468. 

Commissioners  of  navigation  may  remove  pilots,  468. 

Penalty  for  acting  as  pilots  after  removal,  468. 

on  pilots  for  refusing  to  go  to  a  vessel  having  a  signal,  469. 

Pilots'  pay  if  driven  off  the  coast  after  boarding,  469. 

Pilots  entitled  to  be  paid  if  they  go  off  to  a  vessel,  though  the  master  will  not  take  them,  469. 

No  pilotage  on  vessels  under  sixty  tons  burthen,  469. 

Rates  of  pilotage  for  the  Ocracock  pilots,  469. 
at  Old  Topsail  inlet,  469, 
for  Bogue  inlet,  470. 
to  be  annexed  to  the  branches,  470. 

No  slave  to  act  as  pilot  over  any  bar,  470. 

Penalty  for  throwing  ballast  into  any  channel,  470. 

How  penalties  and  fines  to  be  disposed  of,  470. 
PITCH.     See  Inspections  and  Inspectors. 

PLEAS  AND  PLEADING.     See  Practice,  Pleas  and  Process. 
POLL  TAX.     See  Revenue. 
POOR. 

Wardens  of  the  poor  to  be  elected  every  three  years,  471. 

Sheriffs' duty  in  summoning  wardens,  and  penalty  for  failure,  471. 

How  the  election  of  wardens  shall  be  conducted,  472. 

Oaths  to  be  taken  by  wardens,  472. 

Penalty  on  wardens  for  refusing  to  qualify,  472. 

Vacancies  to  be  supplied  by  the  remaining  wardens,  472. 

On  failure  of  the  election  at  the  usual  time,  sheriff  to  appoint  another  day  of  election,  472. 

Place  of  the  meeting  of  the  wardens,  473. 

Wardens  to  appoint  a  clerk,  473. 

Three  wardens  may  call  a  meeting,  473. 

Penalty  on  the  sheriff  for  failing  to  summon,  and  the  wardens  for  failing  to  attend,  473. 

Wardens  to  keep  minutes  and  accounts,  473. 

To  publish  an  account  of  their  receipts  and  expenditures  annually,  473. 

Tax  for  the  poor  to  be  laid  by  the  county  courts  on  application  of  the  wardens,  473. 

Sheriff  to  collect  the  tax  and  account  to  the  wardens,  473. 
Wardens  to  settle  with  their  successors,  474. 

County  courts  may  erect  poor  houses,  474. 

Poor  houses  to  be  under  the  direction  of  the  wardens,  474. 
Property  of  wardens  exempt  from  taxation,  474. 


688 


INDEX. 


POOR,  (Continued.) 

County  courts  may  lay  taxes  for  the  erection  of  poor  houses,  474. 

What  shall  be  a  legal  settlement,  474. 

How  paupers  coming  into  a  county  may  be  removed,  474. 

County  where  the  paupers  were  last  legally  settled,  to  pay  all  charges,  475. 

Housekeepers  to  give  notice  of  such  paupers  to  the  wardens,  475. 

Wardens  to  support  the  families  of  poor  militia  men  absent  on  service,  475. 

Wardens  to  provide  for  infirm  slaves  neglected  by  their  owners,  and  may  recover  the  costs  from 
such  owners,  475. 

Owners  to  have  previous  notice,  475. 

Executors,  &c.  liable  to  the  wardens,  if  they  neglect  to  provide  for  slaves  under  their  care,  476. 

Duty  of  the  wardens  when  the  owner  lives  in  another  county,  476. 

Two  wardens  may  act  in  the  case  of  such  slaves,  476. 

Power  of  the  wardens  when  a  person  is  about  to  remove  from  the  county  leaving  infirm  slaves,  476. 

All  horses,  cattle,  &c.  belonging  to  slaves,  to  be  seized  by  the  wardens,  476. 

How  forfeitures  and  penalties  under  the  act  providing  for  the  poor  may  be  recovered,  476. 
PORK.     See  Inspections  and  Inspectors. 
POSSESSION.     See  Limitations. 

POWER  OF  ATTORNEY.     See  Deeds  and  Conveyances. 

PRESIDENT  AND  VICE  PRESIDENT  OP  THE  UNITED  STATES.     See  Electors  of  Presi- 
dent and  Vice  President. 
PRESUMPTION  OF  PAYMENT  OR  SATISFACTION.     See  Limitations. 
PRETENDED   RIGHTS. 

The  buying  or  selling  pretended  rights  prohibited,  260. 
PRACTICE,  PLEAS  AND  PROCESS. 

Actions  where  to  be  brought,  150. 

Actions  otherwise  brought  to  be  abated  on  plea,  151. 

No  suit  to  be  brought  in  any  court  for  any  claim  under  sixty  dollars  on  an  unliquidated  account,  &c. 
nor  for  a  sum  under  one  hundred  dollars  due  by  note,  &c.,  151. 

If  a  suit  be  commenced  in  the  county  court  for  a  sum  under  sixty  dollars  due  by  account,  it  may  be 
abated — if  for  a  sum  under  one  hundred  dollars  due  by  note,  &c.  it  may  be  dismissed,  151. 

If  a  suit  in  either  of  those  cases  be  commenced  in  the  superior  court,  it  shall  be  dismissed,  151. 

In  either  of  those  cases  in  the  superior  court,  where  the  suit  is  commenced  for  more  and  the  jury 
find  less  to  be  due,  the  plaintiff  shall  be  nonsuited  unless  he  file  an  affidavit  that  more  is  due, 
151. 

Not  to  extend  to  suits  on  penal  bonds,  &c.,  151. 

Sheriif  to  execute  all  process  from  courts,  568. 

The  day  when  process  issues  to  be  marked  thereon,  and  the  sheriff  to  endorse  the  day  when  he  re- 
ceives it,  152. 

Clerks  to  take  security  for  costs  before  issuing  any  writ  or  other  leading  process,  otherwise  the  suit 
may  be  dismissed,  152. 

Proviso  in  favor  of  persons  smng  in  Jbrma  pauperis,  152. 

Clerks  to  enter  in  a  book  the  names  of  parties  to  suits  and  their  sureties,  l52. 

Penalty  on  clerks  for  issuing  process  without  taking  security,  152. 

Poor  persons  may  sue  in  Jbrma  pauperis,  153. 

When  writs  may  issue  to  diiferent  counties  at  the  same  time,  returnable  to  the  county  or  superior 
courts,  153. 

The  real  plaintiff  inaction  of  ejectment  to  give  a  prosecution  bond,  153. 

Persons  desiring  to  be  made  defendants  in  ejectment  must  give  a  bail  bond,  153. 

Where  plaintiff  in  ejectment  makes  affidavit  that  defendant  entered  as  his  tenant,  &c.,  the  de- 
fendant shall  not  plead  until  he  gives  bond  for  the  costs  and  damages,  153. 

What  facts  in  such  case  the  jury  are  to  find,  154. 

If  they  find  for  the  plaintiff  they  must  assess  damages  for  the  occupation,  &c.,  154. 

Defendant  may  rebut  plaintiff's  affidavit  by  his  own,  154. 

If  plaintiff  does  not  give  security,  his  suit  to  be  dismissed,  154. 

Defendant  in  ejectment  to  give  bailor  be  in  custody  before  pleading,  154. 

Writs  and  other  process,  when  to  be  returned,  154. 

How  long  before  court  to  be  executed,  155. 

When  the  sheriff  returns  that  he  has  the  defendant  in  jail,  how  the  plaintiff  shall  proceed,  155. 


INDEX.  689 

PRACTICE,  PLEAS  AND  PROCESS,  (Continued.) 

Sheriff  to  take  no  obligation  from  any  person  in  his  custody,  but  such  as  is  payable  to  himself  as 
sheriff,  569.  ,  ' 

No  female  shall  be  taken  or  imprisoned  for  debt,  155. 

How  the  plaintiff  may  proceed  when  the  sheriff  returns  that  the  defendant  is  not  to  be  found,  155. 

If  goods  be  taken  on  a  judicial  attachment,  and  be  not  replevied,  they  may  be  sold  on  a  final  judg- 
ment, 155. 

When  a  sheriff  returns  that  the  defendant  is  not  an  inhabitant  of  his,  but  of  some  other  county,  an 
alias  shall  issue  to  the  count^where  the  defendant  resides,  155. 

Times  at  which  sheriff  shall  not  execute  civil  process,  155. 

If  there  be  in  any  county  no  proper  officer  to  execute  process,  or  he  refuse  to  do  so,  any  judge  may 
direct  the  sheriff  of  an  adjoining  county  to  execute  the  same,  156. 

Additional  compensation  allowed  to  sheriffs  for  executing  process  out  of  their  county,  156. 

Sheriff  failing  to  execute  and  return  process,  to  forfeit  one  hundred  dollars,  and  be  also  liable  to 
indictment,  156. 

Rules  of  court,  157. 

Declaration  to  be  filed  within  the  three  first  days  of  the  term,  or  the  suit  may  be  dismissed,  157. 

Defendant  to  appear  and  plead  or  demur  at  the  same  term,  157. 

When  special  pleading  is  required,  the  time  may  be  enlarged,  157. 

Writ  of  inquiry  as  to  the  value  of  foreign  currency  to  be  executed  at  the  same  term  with  the  judg- 
ment, 157. 

Plaintiff  to  reply  or  demur  at  the  same  term,  157. 

Other  pleas  to  be  filed  and  issues  made  up  at  the  same  term,  157. 

Time  may  be  allowed  to  argue  a  demurrer,  bill  of  exceptions,  &c.,  157. 

Parties  may  enter  their  own  pleas,  157. 

Clerk  to  enter  proceedings  of  court  in  a  well  bound  book,  157. 

Jury  causes  to  be  first  tried,  157. 

Motions  in  arrest  of  judgment  to  be  argued  within  the  three  last  days  of  the  term,  157. 

Argument  causes,  when  to  be  argued,  158. 

No  plea  in  abatement  to  be  received,  but  on  affidavit  or  proof,  158. 

When  plea  in  abatement  is  overruled,  plaintiff  shall  recover  costs,  158. 

As  many  pleas  as  may  be  thought  necessary,  maybe  pleaded,  158. 

A  plea  since  the  last  continuance  not  to  be  a  Avaiver  of  former  pleas,  158. 

All  issues  to  be  tried  at  the  succeeding  term  after  being  made  up,   158. 

No  cause  to  be  continued,  but  by  consent  of  parties  or  on  affidavit,  158. 

Court  may  order  a  party  continuing  a  cause  to  pay  costs,  158. 

Not  more  than  one  attorney  to  speak  in  any  cause,  158. 

Every  attorney  appearing  in  any  cause,  to  produce  and  file  a  power  of  attorney,  if  required,  158. 

When  it  is  necessary  for  the  attorney  to  retain  the  power,  what  to  be  done,  158. 

No  attorney  to  enter  an  appearance,  until  the  power  is  produced,  if  required,  158. 

In  actions  upon  penal  bonds,  &c.  plaintiff  may  assign  as  many  breaches  as  he  thinks  fit,  159. 

If  judgment  be  given  for  the  plaintiff  on  demurrer,  &c.,  he  may  suggest  as  many  breaches  on  the 
roll  as  he  thinks  fit.  159. 

Defendant  may  pay  damages  and  costs  into  court,  and  if  so  no  execution  shall  issue,  159. 

Judgment  shall  continue  and  be  a  security  for  further  breaches,  159. 

Plaintiff  may  have  scire, facias  upon  such  judgment,  159. 

Rules  for  taking  testimony  and  summoning  witnesses,  160. 

After  the  removal  of  a  cause,  subpoenas  and  commissions  to  take  testimony  may  be  issued 
from  either  court,  162. 

Party  cast  to  pay  but  for  two  witnesses  to  prove  the  same   fact,  163. 

Costs  of  publication  and  postage  of  letters  covering  process,  to  be  taxed,  163. 

The  party  in  whose  favor  judgment,  &c.  is  given,  to  recover  full  costs,  163. 

Defendant  may,  in  certain  cases,  plead  a  set-ofl",  or  give  it  in  evidence  under  the  general  issue,  upon 
notice  to  the  plaintiff.  164. 

In  what  cases,  in  actions  of  slander,  and  of  assault  and  battery,  the  plaintiff  shall  not  recover  more 
costs  than  damages,  164. 

In  trespass  quare  clausum  fregit,  the  defendant  may  disclaim  and  plead  tender,  &c.,  164. 

If  in  such  case  the  jury  find  the  trespass  involuntary,  and  the  tender  in  favor  of  the  defendant,  the 
plaintiff  shall  be  barred,  164. 

VOL.  I.  87 


690  INDEX. 

PRACTICE,  PLEAS  AND  PROCESS,  {Continued.) 

In  actions  of  trespass,  &c.,  if  there  be  more  than  one  defendant,  and  one  or  more  be  acquitted,  the 
persons  so  acquitted  shall  recover  full  costs,  unless  the  judge  certifies,  &c.,  164. 

In  what  cases  a  subpoena  duces  tecum  may  issue,  165. 

Court  may   order   either  party  to  produce  books   or  papers — Consequences  of  a  refusal  to  pro- 
duce, 165. 

In  petitions  for  dower  or  partition,  the  costs  are  at  the  discretion  of  the  court,  165. 

Action  maybe  brought  against  the  maker  of  a  bill,  &c.,  jointly  with  the  endorsers,  or  against  all  or 
any  one  of  them,  1 65 . 

On  joint  obligations,  &c.  of  copartners,  &c.  action  may  be  brought  against  all  or  any  one   or 
more,  165. 

Joint  obligations  shall  survive  against  heirs,  executors,  &c.  of  deceased  obligors,  166. 

How  the  judgment  is  to  be  entered  when  the  suit  is  against  the  executor,  &c.  of  the  deceased  obli- 
gor and  the  survivor,  166. 
,  When  more  actions  than  one  are  brought  on  a  promissory  note,  &c.  the  court  may  consolidate 
them,  166. 

Where  a  defendant  to  a  suit  in  the  county  court  removes  himself  or  his  property,  the   clerk  may 
issue  an  execution  to  any  county,  &c.,  166. 

In  actions  for  money  due  by  contract,  except  penal  bonds,  the  jury  must  distinguish  between  prin- 
cipal and  interest,  and  the  judgment  for  the  principal  shall  carry  interest,  166. 

In  an  action  on  a  single  bill,  &c.  if  defendant  makes  no  defence,  clerk  may  calculate  interest  with- 
out a  writ  of  inquiry,  167. 

Petitions  may  be  filed  in  vacation,  167. 

Clerk  to  issue  a  capias  upon  petitioner's  making  an  affidavit  of  the  amount  of  his  demand,  167. 

Where  a  petition  is  served  upon  one  of  several  defendants,  and  the  others  reside   out  of  the  State, 
the  court  shall  order  publication  to  be  made,  167. 

Court  may  order  the  clerk  to  audit  and  settle  accounts,  167. 

Infants  may  sue  by  their  next  friend,  168. 

Either  party  to  a  suit  may  tender  to  the  judge  a  bill  of  exceptions,  16S. 

Judge  to  sign  and  seal   the  same,  or  if  he   refuse,  some  other  person  present  may  sign  and    seal 
it,  168. 

Actions  of  account  may  be  brought  against  the  executors   and   administrators  of  guardians,  &c., 
168. 

If  an  action  for  any  penalty  be  brought  in  good  faith,  and  defendant  plead   a  former  judgment 
against  him,  &c.,  plaintiff  may  reply  fraud,  &c.,  168. 

In  an  action  of  debt  on  a  bond,  &c.  payment  may  be  pleaded,  169. 

In  an  action  of  debt  on  a  bond  with  a  penalty,  if  the  defendant  bring  into  court  the  principal,  inter- 
est and  costs,  the  bond  shall  be  deemed  discharged,  &c.,  169. 

Judgment  of  a  court  to  stand  till  reversed,  169. 

Upon  an  appeal  by  a  defendant  from  a  justice's  judgment,  or  a  recordari  obtained  by  a  defendant, 
court  may  compel  plaintiff  to  give  security,  &c.,  169. 

No  execution  to  issue  on  a  judgment  after  a  year  and  a  day,  without  a  scire  facias  to  revive   the 
same,  170. 

Plaintiff  shall  not  be  nonsuited  after  verdict,  170. 

The  death  of  either  party  between  verdict  and  judgment  shall  not  be  assigned  for  error,  171. 

Ill  suits  upon  bonds  of  executors,  administrators  and  guardians,  upon  motion  at   the    appearance 
term,  a  reference  may  be  made  to  have  an  account  stated,  171. 

In  suits  involving  questions  of  boundary,  the  court  may  order  a  survey — Proceedings  thereupon,  172. 

Clerk  not  to  affix  the  seal  of  tlie  court  to  process  to  be  executed  within  the  county,  172. 

Slieriff,  &c.  to  serve  all  notices  that  may  be  necessary  in  any  proceeding  in  law  or  equity,  172. 

How  notices  to  be  served,  173. 

Penalty  on  officer  for  failing  to  serve  notices  or  making  a  false  return,  173. 

Notice  may  be  given  and  proved  as  heretofore,  173. 

The  return  of  a  sheriflF  on  a  scire  facias  that  he  has  executed  the   same,   sufficient  evidence  of  the 
service,  173. 

Defendants,  upon  trial,  may  show  that  they  are  sureties,  and  the  jury  or  justice   to  discriminate 

the  principal  from  the  sureties,  173. 
In  such  case  the  officer  shall  levy  first  on  the  property  of  the  principal,  173. 

Property  of  the  principal  shall  be  first  sold,  173. 


INDEX.  691 

PRACTICE,  PLEAS  AND  PROCESS,  (Continued.) 

A  judgment  for  the  costs  may  be  given  against  the  plaintiff,  and   tlie   sureties  to  his  prosecution 
bond  upon  his  failing  to  prosecute  with  success,  173. 

A  defendant  against  whom  judgment  is  rendered,  may  pay  the  money  to  the  clerk  before  execution 
issues,  174. 

Clerk  to  pay  the  same  to  the  party  entitled  to  receive  it,  174. 

Judge,  how  to  deliver  his  charge  to  the  jury,  174. 

Judges  of  the  supreme  court  to  prescribe  rules  of  practice  for  the  superior  courts,  186. 

Ofiicers  and  privates  attending  any  muster  or  review  to  be  exempt  from  arrest  in  civil  cases,  404. 

For  practice,  &c.  in  equity,  see  Courts  of  Equity. 
PRISONERS. 

Keepers  of  jails  in  this  State  to  receive  and  keep  prisoners  of  the  United  States,  478. 

Jailers  to  have  the  same  fees  as  for  keeping  prisoners  of  this  State,  478. 

When  the  jail  of  any  county  shall  be  destroyed  the  prisoners  shall  be  sent  to  the  jail  of  some 
adjoining  county,  473. 

When  there  shall  be  no  jail  in  any  county,  the  courts  and  magistrates  may  send"prisoners  to  the  jail 
of  an  adjoining  county,  478. 

When  there  is  no  jail  in  any  county,  the  sheriff,  &c.  may  confine  any  person  arrested  under  process 
civil  or  criminal,  in  the  jail  of  an  adjoining  county,  478. 

Sheriff,  apprehensive  of  prisoners  escaping,  how  to  proceed  to  obtain  a  guard,  479. 

Persons  ordered  on  guard  to  receive  compensation,  479. 

Prisoners  committed  for  criminal  offences  to  bear  the  charges  of  imprisonment,  479. 

Claims  for  guarding,  &c.  prisoners,  to  be  paid  by  the  county  from  which  they  are  sent,  479. 

Prisoners  may  purchase  necessaries  in  addition  to  the  diet  furnished  by  the  jailer,  479. 

Penalty  on  jailers  for  injuring  prisoners,  480. 

Jailer  to  cleanse  the  jail  and  furnish  diet,  &c.,  480. 

Blankets  and  bed  clothing  to  be  provided  for  the  use  of  prisoners,  480. 

Prison  bounds  for  the  benefit  of  prisoners  to  be  laid  out  by  the  county  court,  480. 

Bonds  taken  from  debtors  for  keeping  the  prison  bounds,  how  to  be  proceeded  on,  480. 

Manner  of  transferring  prisoners  from  a  sheriff  to  his  successor,  481. 

Prisoners  to  be  confined  in  the  proper  apartments  of  the  jail,  481. 

Penally  on  sheriff  or  jailer  for  confining  them  otherwise,  481. 
PRISONS.    See  Court  Houses,  Prisons  and  Stocks . 

Breaking  prison,  when  a  capital  offence,  195. 
PRIVATE  SECRETARY  TO  THE  GOVERNOR. 

Governor  shall  appoint  a  private  secretary  who  shall  enter  letters  in  a  letter  book,  303. 

Letter  book  to  be  kept  in  the  executive  office,  303. 

Salary  of  the  governor's  private  secretary,  what  and  when  to  be  paid,  549. 

Fees  of  the  governor's  private  secretary,  551. 
PROCESS.     See  Practice,  Picas  and  Process. 
PROCESSIONER  AND  PROCESSIONING. 

County  courts  to  divide  their  counties  into  districts,  and  appoint  a processioner  in  each  district,  482. 

Processioner  to  take  oaths,  482. 

Form  of  processioner's  oath  of  office,  437. 

Owner  of  lands,  how  to  proceed  to  have  them  processioned,  482. 

When  land  lies  partly  in  two  counties,  it  may  be  processioned  by  processioners  in  either,  482. 

Processioner  to  make  out  a  certificate  in  words  at  full  length,  and  return  it  to  the  clerk,  &g.,  483. 

Certificate  to  be  recorded  by  the  clerk,  483. 

What  to  be  done  when  a  line  is  disputed,  and  the  processioner  is  forbidden  to  proceed,  483. 

Person,  whose  lands  have  been  twice  processioned,  to  be  deemed  the  owner,  483. 

Proviso  as  to  what  persons  shall  not  be  bound  by  such  processioning,  483. 

Fees  of  processioners,  559.  • 

PROFANE  SWEARING. 

Penalty  on  persons  for  profanely  swearing  in  the  hearing  of  a  justice,  608. 

A  public  officer  to  pay  double,  608. 

Penalty  for  profanely  swearing  in  a  court  of  record,  60S. 

Power  of  justices  as  to  these  offences,  608. 

Within  what  time  the  offences  must  be  prosecuted,  608. 


692 


INDEX. 


PROMISSORY  NOTES.     See  Bills,  Bonds  and  Promissory  Notes. 
PUBLIC  ARMS. 

The  public  arras,  with  certain  exceptions,  to  be  deposited  in  the  public  arsenals,  484. 

Keeper  of  the  public  arms  to  be  appointed,  485. 

Governor  to  have  the  arsenals  protected,  485. 

may  distribute  the  public  arms  to  volunteer  companies,  upon  the  commanding  officer  giving 
bond,  485. 

The  police  authorities  of  a  town,  or  the  senior  colonel  of  a  county,  may  obtain  arms  upon  giving 
bonds,  485. 

How  the  public  arms  ma,y  be  distributed  in  cases  of  invasion  or  insurrection,  485. 

Duty  of  the  militia  officers  on  receiving  the  public  arms,  485. 

Penalty  for  not  keeping  the  public  arms  in  order,  486. 

Penalty  for  selling  or  embezzling  them,  486. 

On  the  death,  &c.  of  a  private,  his  arms  to  be  taken  and  delivered  to  his  successor,  486. 

Militia  officers  to  demand  the  public  arms  when  in  the  possession  of  those  not  entitled  to  them, 
486. 

Detachments  ordered  into  service,  may  be  furnished  with  arms,  486. 

The  same  regulations  prescribed  for  the  arms  hereafter  to  be  distributed,  shall  apply  to  those  here- 
tofore distributed,  487. 

Adjutant  general  to  have  the  public  arms  repaired  and  stamped,  487. 

Public  arms  now  in  the  arsenals,  to  be  deposited  at  certain  places  for  distribution,  487. 

Adjutant  general  to  inform  the  senior  colonel  of  each  county,  who  shall  send  for  the  arms  and  dis- 
tribute them,  488. 

Upon  the  dissolution  of  a  volunteer  company,  the  arms  to  be  delivered  to  the  colonel,  488. 

Expenses  of  repairing  and  stamping  the  public  arms  to  be  paid  by  the  treasurer,  488. 
PUBLIC  BUILDINGS. 

Who  shall  be  a  board  to  take  charge  of  the  public  buildings,  562. 

Board  to  direct  repairs,  which  shall  be  paid  by  the  public  treasurer,  562. 

Unlawful  to  deface  the  walls  of  the  state  house,  562. 

If  an  infant  oifends,  parent  or  guardian  to  pay,  562. 

Burning  a  public  building,  punishable  with  death,  192. 

Attempt  to  burn  a  public  building,  how  punishable,  197. 
PUBLIC  DOCUMENTS. 

How    the    public    documents,    transmitted    by    the   general    government,    shall    be    distributed, 
489. 
PUBLIC  LANDINGS. 

Former  places  of  landing  continued,  and  county  courts  may  appoint  others,  330. 
PUBLIC  LANDS. 

Persons  trespassing  on  the  public  lands,  liable  to  indictment,  201. 
PUBLIC  PRINTING. 

The  secretary  of  state  to  let  out  the  printing  of  the  acts,  &.c.  of  the  legislature — To  let  out  the  jour- 
nals separate  from  the  acts,  490. 

Also  the  printing  to  be  done  for  either  or  both  houses  of  the  General  Assembly,  490. 

Persons  contracting,  to  give  bonds,  &c.,  490. 

The  secretary  of  state  to  file  the  proposals  with  the  governor,  490. 

What  number  of  the  acts  and  journals  shall    be  printed,  and   how  they  shall    be  distributed, 
490. 

The  public  acts  to  be  printed  separate  from  those  of  a  private  nature,  491. 

What  to  be  published  with  them,  491. 

Within  what  time  copies  of  the  acts  and  journals  shall  be  furnished  to  the  printer,  and  by  whom — 
Within  what  time  to  be  printed,  491. 

Secretary  to  have  them  delivered,  491 . 

Governor,  treasurer,  &c.  to  have  blanks,  &c,  printed  for  their  offices,  491. 

In  what  form  the  acts,  &c.  shall  be  printed. 

The  secretary  of  state  to  keep  a  book  for  the  names  of  the  justices  of  the  peace  in  the  State, 
491. 

Advertisements,  where  to  be  made  in  certain  cases,  492. 
PUBLIC  TREASURER.    See  Treasurer  of  the  State. 


INDEX.  693 

QUAKERS,  MORAVIANS,  MENONISTS  AND  DUNKARDS. 

Quakers  competent  to  serve  as  grand  and  petit  jurors  in  criminal  cases,  149. 
may  wear  their  hats  in  court,  174. 

Persons  having  scruples  of  conscience  against  bearing  arms,  to  be  excused  from  the  performance  of 
militia  duty,  395. 

Quakers,  Moravians,  &c.  to  be  afSrmed,  432. 

Their  affirmations  to  be  received  in  all  cases,  civil  and  criminal,  432. 
QUARANTINE  AND  HEALTH. 

Who  may  direct  quarantine,  and  when,  492. 

Masters  and  pilots  of  vessels  to  report,  493. 

Duty  of  those  ordered  to  perform  quarantine,  493. 

Vessel  coming  from  an  infected  place,  to  anchor  at  quarantine  ground,  493. 

Coming  into  port  without  permission,  the  master  or  pilot  indictable,  494. 

Force  may  be  used  to  remove  such  vessel,  494. 

Port  physicians  may  be  appointed,  494. 

Penalty  for  passengers  or  crew  breaking  quarantine,  494. 

Penalty  on  persons  going  on  board  without  permission,  494 . 

Penalty  on  master  for  permitting  it,  495. 

Such  persons  may  be  ordered  to  remain  on  board,  495. 

Persons  breaking  quarantine  may  be  arrested  and  sent  back,  495. 

Penalty  for  landing  any  articles,  495. 

Oath  may  be  required  of  the  master  as  to  the  health  of  his  crew,  &c.,  495. 

Penalty  for  giving  a  false  certificate,  495. 

Provisions  to  be  furnished  vessels  under  quarantine,  495. 

How  penalties  recovered  and  applied,  495. 

Penalty  on  pilots  in  certain  cases,  496. 

Commissioners  of  navigation  may  appoint  harbor  masters  and  health  officers,  and  enact  bylaws  and 
regulations,  496. 

Commissioners  of  seaport  towns  to  have,  in  certain  cases,  the  authority  of  commissioners  of  naviga- 
tion, 496. 

What  shall  be  considered  nuisances  in  seaport  towns,  49G. 

Owners  of  lots  in  seaport  towns  to  keep  them  drained  at  certain  seasons — Penalty  for  neglect,  497. 

Coimnissioners  may  remove  the  nuisance  at  the  expense  of  the  owner,  497. 

Officers  of  police  in  incorporated  towns,  to  adopt  measures  for  preventing  contagious  diseases,  497. 
QUO  WARRANTO  AND  MANDAMUS- 

In  what  cases  an  information  may  be  filed,  and  by  whom,  498. 

Nature  of  the  proceedings  in  such  cases,  498. 

In  certain  cases  several  rights  may  be  tried  in  one  information,  498. 

Pleas,  when  to  be  filed,  498. 

Upon  conviction,  what  judgment  the  court  may  pronounce,  498. 

Costs  to  be  recovered  by  the  party  succeeding,  499. 

A  return  shall  be  made  to  the  first  mandamus,  499. 

Court  may  give  time  to  make  return,  plead,  &c.,  499. 

Returns  may  be  contested,  and  proceedings  thereon,  499- 

If  the  plaintiff  have  a  verdict  in  his  favor  on  such  contested  return,  what  consequences  shall  follow, 
499. 

RAIL  ROADS. 

Remedy  for  persons  having  stock  killed  upon  rail  roads,  by  the  engines  or  cars,  101. 
RALEIGH, 

The  city  of  Raleigh  to  be  the  seat  of  government,  562. 
RANGER.    See  Strays. 
RAPE. 

Rape,  or  carnally  knowing  any  female  under  ten  years  of  age,  punishable  with  death,  192. 

Any  person  of  color  attempting  to  commit  a  rape  on  a  white  woman  to  suffer  death,  590. 
RECEIVERS  OF  STOLEN  GOODS. 

Receivers  of  stolen  goods,  &c.  how  punishable,  204. 
RECOGNIZANCE.     See  Fines  and  Forfeitures. 


694 


INDEX. 


RECORDARI  AND  FALSE  JUDGMENT. 

Persons  obtaining  writs  of  recordari,  or  false  judgment,  to  give  security  as  in  cases  of  appeals,  64. 
RECOVERIES. 

Tenants  for  life  protected  against  feigned  recoveries,  261. 
Proviso  for  certain  recoveries  by  good  title,  261. 
Certain  recoveries  by  assent,  good,  261. 
A  termor  may  falsify  for  his  term,  &c.,  261. 
Terms  for  years  protected  against  recoveries,  261. 
Persons  having  lands  by  execution  protected,  261. 
REFUNDING  BOND.     See  Executors  and  Administrators. 
REGISTERS. 

County  courts  to  appoint  registers,  who  are  to  take  oaths,  and  hold  their  offices  for  four  years,  500. 

Form  of  register's  official  oath,  436. 

County  courts  to  fill  vacancies,  and  the  persons  appointed  to  hold  office  for  four  years,  500. 

Three  justices  to  fill  vacancies  occurring  between  the  terms  of  the  courts,  and  the  persons  appointed 

to  remain  in  office  until  an  appointment  by  court,  500. 
The  clerk  shall  record  such  appointment,  501. 
Registers  to  give  bond,  50. 

Clerks  to  deliver  deeds,  and  pay  over  register's  fees  after  ten  days  from  the  rise  of  the  court,  501. 
Registers,  to  call  upon  the  clerks  for  the  deeds,  &c.  within  twenty  days  from  the  rise  of  the  court, 

501. 
Penalty  on  registers  for  delay  in  registering  deeds,  &c.,  501. 

Registers,  to  leave  deeds,  &c.  which  they  have  registered,  at  the  county  court,  502.    . 
Registers  convicted  of  breach  of  duty,  may  be  removed  from  office,  502. 
County  courts  may  have  register's  books  transcribed,  502. 
Registers,  to  be  exempt  from  serving  on  juries,  502. 
For  a  remedy  on  their  bonds,  &c.,  see  Official  Bonds. 
Fees  of  registers,  558. 
"'^  REGISTRATION.     See  Entries  and  Grants,  Deeds  and  Conveyances. 
RELIGION.     See  Religious  Societies. 

Freedom  of  religious  worship  secured,  8. 
RELIGIOUS  SOCIETIES  AND  CONGREGATIONS. 

All  lands,  &c.  heretofore  appropriated  to  any  religious  society,  to  belong  to  them,  503. 
Houses  of  worship,  on  vacant  land,  secured  to  the  religious  society  erecting  them,  503. 
Religious  societies  may  choose  trustees — Their  power,  503. 
Trustees  may  sue  and  be  sued,  504. 
Trustees  to  account  to  their  respective  societies,  504. 
Donations,  &c.  to  religious  societies  confirmed,  504. 
Penalty  for  obstructing  ways  to  places  of  public  worship,  504. 

No  stud  horse  or  jackass  to  be  brought  within  three  hundred  yards  of  a  place  of  a  religious  congre- 
gation, 505. 
Spirituous  liquors  not  to  be  brought  for  sale  within  half  a  mile  of  persons  assembled  for  religious 

worship,  505. 
Proviso  as  to  bringing  stud  horses  or  selling  liquors,  where  the  church,  &c.  is  in  any  town,  505. 
Penalty  for  intoxication  or  disorderly  behavior  during  divine  service,  505. 
How  penalties  shall  be  recovered,  505. 
•  When  appeal  is  taken,  duty  of  clerk  and  prosecuting  attorney,  506. 
•     REMOVAL  OP  CAUSES. 

Any  cause  in  the  superior  court,  either  civil  or  criminal,  may  be  removed  on  affidavit  to  an  adjoin- 
ing county  for  trial,  171. 
The  parties  to  any  suit  may  remove  the  same  to  an  adjoining  county  by  consent,  171. 
Upon  the  removal  of  a  cause,  the  clerk  to  send  a  transcript,  together  with  the  depositions,  &c.  filed 

therein,  172. 
Cause  to  be  removed  on  affidavit  not  more  than  twice,  172. 
After  the  removal  of  a  cause,  subpcenas  and  commissions  to  take  testimony,  may  be  issued  from 

either  court,  162. 
Trials  of  slaves  may  be  removed  as  in  cases  of  free  persons,  582. 
REMOVING  DEBTORS.    See  Frauds  and  Fraudulent  Conveyances. 


X|«C/8'.     C^.tl. 


INDEX. 


695 


REPEAL  OF  STATUTES. 

Former  acts  on  the  subjects  embraced  in  the  revised  statutes,  and  all  British  statutes,  repealed  after 

the  first  of  January,  133S..  52. 
Efiect  of  such  repeal  on  rights  accrued  or  suits  commenced,  53. 

on  offences  committed,  or  penalties  incurred,  53, 
on  suits  or  prosecutions  commenced  for  offences,  53. 
No  act  heretofore  repealed  shall  be  revived  by  such  repeal,  53. 
The  repeal  of  a  statute  shall  not  affect  suits  then  pending,  &c.,  506. 
REPLEVIN. 

Action  of  replevin  for  slaves  maintainable,  in  what  cases,  507. 

Duty  of  clerk  before  issuing  writ,  507. 

Description  and  value  of  slaves  to  be  stated,  507. 

Duty  of  sheriff  in  executing  the  wi'it,  507. 

What  judgment  shall  be  rendered  if  plaintiff  recovers,  507. 

the  plaintiff  shall  have  in  case  of  his  recovery,  when  the  slave  shall  have  been  de- 
livered to  him  by  the  sheriff,  507. 
REPORTER. 

Judges  of  the  supreme  court  to  appoint  a  suitable  person  to  report  the  decisions  of  the  court,  IS8. 
Duties  and  compensation  of  the  reporter,  188,  549. 

The  clerk  of  the  supreme  court  shall  in  certain  cases  perform  the  duty  of  reporter — His  pay  there- 
for, 188. 
RETAILERS  OF  SPIRITUOUS  LIQUORS. 

Retailing  spirituous  liquors  by  the  small  measure  without  a  license  indictable,  211. 

Sheriff  to  furnish  the  county  attorney  with  a  list  of  those  having  licenses  to  retail,  to  be  laid  before 

the  grand  jury,  211. 
Retailers  of  liquors  to  sell  by  sealed  measures,  445. 

No  ordinary  keeper  to  give  credit  for  liquor  beyond  ten  dollars — Proviso,  446. 
Persons  wishing  to  obtain  licenses  to  retail  liquors,  how  to  proceed,  447. 
Tax  on  retailers  of  spirituous  liquor,  516. 
REVENUE. 

Taxes  not  to  be  imposed  without  the  consent  of  the  people  or  their  representatives,  8. 
Tax  on  real  estate,  510. 

What  real  estate  shall  be  subject  to  taxation,  510.  > 

Entries  of  land  subject  to  taxation,  511. 
Tax  on  real  estate  shall  be  a  lien  thereon,  511. 
Tax  on  turnpike  roads  and  gates,  511. 

Poll  tax — Proviso  as  to  who  may  be  exempted  from  poll  tax,  511. 
Tax  on  stud  horses  and  jackasses,  511. 
Stud  horses  and  jackasses  to  be  listed,  511. 

Tax  on  billiard  tables — How  to  be  given  in  and  license  obtained  for  keeping  them,  512. 
Tax  on  pedlersby  land,  512. 
by  water,  512. 
Persons  selling  books  only,  not  to  be  taxed,  513. 

Tax  on  pedlers  by  water  on  the  south  side  of  Albemarle  sound,  except  on  Roanoke  and  Cashie,  513. 
Tax  to  be  collected,  though  the  pedler  may  rent  a  temporary  store,  513. 
The  comptroller  to  issue  to  the  sheriffs,  blank  licenses  for  pedlers,  513. 
No  license  to  be  issued  to  a  pedler  but  on  a  certificate  from  the  county  court,  513. 
Tax  on  retail  merchants  and  jewellers,  514. 

on  wholesale  and  commission  merchants,  514. 
on  brokers,  514. 

on  slaves  brought  from  another  state  to  this  State  for  sale,  515. 

on  stage  players,  sleight  of  hand  performers,  exhibiters  of  curiosities,  &c.,  models  of  useful  in- 
ventions excepted,  515. 
Pedlers,  stage  players,  &c.  to  exhibit  their  licenses  to  any  justice  or  constable  when  demanded — 

Penalties  for  refusal,  516. 
Duty  of  constables  to  demand  a  view  of  such  licenses,  516. 
Tax  on  retailers  of  spirituous  liquor,  516. 

on  tavern  keepers,  517. 
Time  when  the  list  of  taxables  shall  be  taken,  517. 


696  INDEX. 

REVENUE,   (Continued.-) 

County  courts  to  appoint  justices  to  take  lists,  517. 

Justices  to  be  notified  of  their  appointment,  517. 

To  appoint  places  of  taking  the  lists,  517. 

Three  justices  may  appoint  one  to  take  lists  in  case  of  vacancy,  517. 

How  tax  lists  shall  be  given  in,  517. 

Tax  lists  to  refer  to  the  first  day  of  April  preceding,  518. 

A  person  coming  of  age  after  that  day  may  list  himself  and  pay  immediately,  518. 

By  whom  the  lists  of  absentees,  testators,  minors,  &c.  shall  be  given  in,  518. 

If  owner  fails  to  give  in  his  lands,  the  justice  may  appoint  a  freeholder  to  value  it,  618. 

In  case  of  failure  by  the  owner  and  justice,  the  sheriff  to  have  the  land  valued  by  a  freeholder — 
Duty  of  such  freeholder,  518. 

Penally  on  freeholders  refusing  to  act,  519. 

Valuation  of  lands  to  be  in  dollars  and  cents,  519. 

How  town  property  to  be  given  in  and  assessed,  5 19. 

A  tract  of  land  lying  partly  in  two  counties,  where  to  be  given  in,  519. 

County  court  to  associate  with  the  justices  appointed  to  take  the  tax  lists,  two  freeholders,  to  form 
a  board  of  valuation,  519. 

Duty  of  the  board  in  assessing  the  value  of  lands,  519. 

Their  compensation,  520. 

Persons  failing  to  give  in  their  lists,  to  pay  a  double  tax,  520- 

Lands  of  a  minor,  &c.  not  to  be  sold  for  taxes,  520. 

Justices  appointed  to  take  the  lists,  to  return  a  copy  of  such  lists  in  alphabetical  order  to  the  next 
county  court,  520. 

Clerks  to  return  abstracts  of  the  lists  to  the  comptroller — Penalty  on  the  clerks  for  failing  to  do  so, 
and  duty  of  the  comptroller  and  attorney  general  in  regard  to  such  failure,  520. 

Form  of  the  lists  to  be  returned  by  the  justices,  520. 

Each  justice  to  return  his  own  lists,  521. 

Penalty  on  justices  appointed  to  take  lists,  for  failure  of  duty,  521. 

County  courts  may  grant  a  certificate,  to  be  received  by  the  comptroller,  when  the  tax  is  overcharg- 
ed, 521. 

Clerks  to  record  the  tax  lists,  and  set  up  copies  of  them  in  the  court  house,  521 . 

Penalty  on  a  justice  for  receiving  a  list  without  an  oath,  521. 

The  clerks  of  the  county  courts  to  deliver  to  the  sheriffs  copies  of  the  lists  returned,  521. 

Sheriff  to  proceed  to  collect  after  first  of  April,  522. 

Penalty  on  the  clerks  for  failure  to  deliver  lists,  522. 

All  persons  employed  to  collect  taxes  must  take  an  oath,  522. 

Sheriffs  by  themselves  or  their  deputies,  or  in  case  of  their  deaths,  their  sureties  to  collect  the  taxes 
522. 

Sheriffs  and  their  sureties  to  have  one  year  to  collect  arrears,  522. 

to  collect  a  double  tax  from  those  who  neglect  to  give  in  their  lists,  522. 

Such  tax,  how  to  be  ascertained,  523. 

Sheriffs  to  give  notice  by  advertisement,  when  they  have  received  their  lists,  523. 

Penalty  on  sheriffs  for  failing  to  collect  taxes  on  property  not  given  in,  523. 

Sheriffs  and  their  sureties  may  distrain  and  sell  during  the  additional  year,  523. 

Lands  may  be  distrained  and  sold  when  there  is  no  personal  property,  523. 

When  a  person  is  about  to  remove,  the  sheriff  may  proceed  forthwith  to  levy  the  taxes  due  from 
him,  523. 

Sheriff  to  give  ten  days'  notice  by  advertisement,  before  he  sells  personal  property  for  taxes, 
524. 

Sheriff  to  advertise  in  some  newspaper  in  Raleigh,  and  also  at  the  court  house  of  his  county,  before 
he  sells  land  for  taxes,  524. 

Sheriff  to  return  to  the  county  court  a  list  of  the  tracts  of  land  to  be  sold,   which  list  shall  be  re- 
corded, &c.,  524.  ■*• 

To  return  a  list  of  the  lands  sold,  the  name  of  the  purchaser,  &c.,  which  shall  be  recorded,  and  a 
copy  set  up  in  the  court  house,  524. 

Penalty  on  sheriffs  and  clerks  for  failing  to  perform  the  duties  enjoined  in  relation  to  selling  lands 
for  taxes,  &c.,  525. 


INDEX.  697 

REVENUE,  {Continued.) 

Sheriff  10  sell  the  land  at  public  sale  to  him  who  will  pay  the  taxes  and  costs  for  the  smallest  part, 

525. 
The  purchaser  to  choose  his  part  in  a  compact  bodj^,  525. 
Persons  whose  lands  are  sold,  may  redeem  within  twelve  months,  525. 
Purchaser  to  have  his  lands  surveyed,  and  the  sheriff  to  execute  a  deed,  525. 
Penalty  on  the  county  surveyor  for  refusing — If  he  refuses,  another  may  make  the  survey,  625. 
When  the  land  shall  be  struck  off  to  the  governor  for  the  use  of  the  State,  526. 
How  the  deeds  of  the  sheriff  to  the  governor  shall  be  perfected — Penalty  on  the  clerks  for  failure  of 

duty  in  this  particular,  526. 
Sheriffs  to  deposit  the  deeds  in  the  secretary's  office,  526. 
Lands  so  bid  off,  to  be  deemed  vacant,  526. 
Sheriff's  oath  with  respect  to  such  lands,  526. 

Sheriffs  to  be  allowed  for  the  taxes  on  land  bid  off  for  the  governor,  527. 
Persons  purchasing  lands  sold  for  taxes,  liable  for  accruing  taxes,  527. 
Lands  to  revert  to  the  State  upon  the  purchaser's  failing  to  comply,  527. 
Where  a  sheriff  dies  or  goes  out  of  office,  his  successor  may  make  a  deed  for  lands  sold  for  taxes, 

527. 
What  to  be  done  by  purchaser  before  obtaining  such  deed,  527. 
Sheriffs  to  settle  with  the  comptroller,  when,  527. 

in  their  settlements,  to  designate  the  different  sources  of  the  taxes,  528. 
Comptroller  to  give  the  sheriffs  certified  copies  of  the  returns,  to  be  deposited  with  the  clerks, 

528. 
Sheriffs  to    return   upon   oath   to  the  county  court  a   list  of  all  taxes  received  from  merchants, 

&c.,  528. 
Such  returns  to  be  recorded  and  published  by  the  clerks,  523. 
If  such  return  cannot  be  made  to  court,  it  may  be  returned  and  filed  with  the  clerk  in  vacation, 

528. 
The  clerk  shall  give  to  the  sheriff  a  copy  of  the  return,  to  be  by  him  delivered  to  the  com.ptroUer — 

Provisos,  528. 
Penalty  on  sheriffs  for  failing  to  make  returns  to  court  or  to  the  clerk,  528. 
Duty  of  the  comptroller  when  he  suspects  any  sheriff  of  making  any  false  return  or  swearing  falsely, 

529. 
Clerks,  for  refusing  to  record  or  to  certify  returns,  shall  be  liable  to  indictment  for  a  misdemeanor 

in  office,  529. 
Sheriffs  to  render  a  list  of  persons  who  paid  a  double  tax,  529. 

to  be  allowed  for  insolvent  taxables — How  to  obtain  such  allowance,  529. 
List  of  insolvents  to  be  advertised  by  the  clerk,  529. 

Penalties  on  sheriffs  for  certain  violations  of  duty  in  relation  to  insolvents,  530. 
Sheriffs'  oath  on  settling  his  accounts  with  the  comptroller,  530. 

Oath  as  to  the  collection  of  delinquent  taxes — Penalty  for  collecting  and  not  accounting  for  delin- 
quent taxes,  530. 
Sheriff's  commission  for  collecting  taxes,  530. 
His  pay  for  time  and  expenses  in  making  his  settlement,  530. 
Bond  to  be  given  by  sheriffs  for  the  collection  of  the  public  taxes,  531. 
Clerks  to  furnish  the  comptroller  with  the  names  of  the  sheriffs  and  their  sureties,  531. 
Penalties  on  clerks  for  failing  to  furnish  comptroller  with  names  of  sheriffs,  &c.,  and  for  failing  to 

make  certain  returns,  531. 
Comptroller's  duty  when  the  sheriff  or  other  accounting  officer  fails  to  settle,  531. 
Duty  of  the  treasurer  in  taking  judgment  against  a  defaulting  officer,  531. 
Summary  judgment  may  be  tsiken  against  all  accounting  officers,  532. 
How  penalties  on  clerks,  justices  and  sheriffs  shall  be  recovered,  532. 
A  summary  judgment  may  be  taken  by  the  treasurer  against  any  person  indebted  to  the  State, 

532. 
Treasurer  to  keep  an  account  of  receipts  and  expenditures,  COL 
To  report  to  the  Geii^^  Assembly  at  each  session,  601. 

Committee  of  finance,  at  each  session,  to  examine  into  and  report  the  state  of  the  treasury,  602. 
No  grant  or  warrant  to  be  paid,  unless  it  express  the  cause  for  which  it  issued,  602. 

VOL.  I.  .  88 


698 


INDEX. 


REVENUE,  {Continued.) 

Names  of  defaulting  revenue  officers  to  be  published,  602. 

Monthly  settlements  to  be  made  by  the  treasurer  and  comptroller— Balance  in  the  treasury  to  be  de- 
posited in  the  banks,  602. 

Duplicate  certificates  of  deposits  to  be  taken,  602. 

Treasurer  may  check  for  the  money  deposited,  602. 

Duty  of  the  treasurer  and  governor  when  a  bank  is  suspected  of  insolvency,  603. 

Treasurer,  in  all  cases,  to  give  duplicate  receipts,  603. 

No  receipt  good  without  the  comptroller's  endorsement,  603. 

Treasurer,  in  certain  cases,  may  appoint  agent,  603. 

Treasurer  may  move  for  judgment  against  such  agents,  as  against  sheriffs,  604 
REVERSIONS. 

Grantees  of  reversions  to  have  the  like  advantages  against  the  tenants  for  life  or  years,  as  the  gran- 
tors had,  259. 

Tenants  for  life  or  years  to  have  like  advantages  against  the  grantees  of  reversions,  as  they  had 
against  the  grantors,  259. 
REVISED  STATUTES. 

Revised  statutes,  when  to  go  into  operation,  49. 

Former  acts  on  the  subjects  embraced  in  the  revised  statutes,  and  all  British  statutes,  repealed  after 
the  first  of  January,  1838,  52. 

Effect  of  such  repeal  on  rights  accrued  or  suits  commenced,  53 . 

Effect  on  offences  committed  or  penalties  incurred,  5  3. 

Effect  on  suits  or  prosecutions  commenced  for  offences,  53. 

No  act  heretofore  repealed  shall  be  revived  by  such  repeal,  53. 

Effect  of  the  repeal  on  persons  holding  offices,  53. 

What  acts  not  included  in  the  repealing  clause,  53. 

How  the  revised  statutes  shall  be  published,  53. 

What  shall  be  contained  in  the  first  volume,  54. 

What  in  a  second  volume,  54. 

Number  of  copies  to  be  published,  54. 

Copy  right  to  be  secured  to  the  State,  54. 

How  the  copies  shall  be  distributed  and  disposed  of,  54. 

The  governor  to  make  compensation  to  the  superintendents  of  publication,  55. 

The  copies  so  printed  to  be  received  as  evidence,  55. 
RICE.     See  Inspections  and  Inspectors, 
RIVERS  AND  CREEKS. 

County  courts  may  appoint  commissioners  to  examine  rivers  and  creeks  and  make  improvements, 
533. 

Overseers  to  be  appointed,  and  their  duty,  533. 

Justices  may  direct  flats,  &c.  to  be  purchased  or  hired,  534. 

Penalty  for  felling  trees  in  the  rivers,  &c.,  534. 

Powers  of  the  county  courts  of  Johnston,  Wajme,  &c.,  as  to  the  river  Neuse,  534. 

Duty  of  the  county  solicitors  in  regard  to  the  improvement  of  rivers  and  creeks,  535. 

Powers  of  the  superior  court  in  regard  to  it,  535. 

Fees  of  solicitors  for  their  services  under  this  act,  535. 

County  courts  may  lay  off  their  rivers,  &c.  into  districts,  535. 

One  fourth  of  the  river  to  be  left  open  for  the  passage  offish,  535. 

Penalty  for  erecting  a  stand,  &c.  in  the  part  of  the  river  required  to  be  left  open  for  the  passage  of 
fish,  535,  536. 

Penalty  for  setting  nets  across  the  main  channel  of  any  navigable  stream,  536. 

To  erect  stand,  &c.  to  prevent  the  passage  of  fish,  indictable — Proviso  as  to  seines,  536. 

Slaves  violating  the  last  section  to  be  whipped,  536. 
ROADS,  FERRIES  AND  BRIDGES. 

What  shall  be  public  roads  and  ferries,  537. 

County  courts  to  settle  ferries,  and  order  the  laying  out  public  roads,  538. ., 

Manner  in  which  ferries  are  to  be  settled,  and.  public  roads  to  be  laid  ouBfeered  or  discontinued, 
538.  ^^ 

Appeals  allowed,  and  proceedings  thereon,  538. 

Directions  as  to  how  roads  shall  be  laid  out,  538. 

Penalty  on  persons  for  turning  roads  contrary  to  law,  539.  • 


INDEX. 


699 


ROADS,  FERRIES  AND  BRIDGES,  (Continued.) 

Where  an  overseer  refuses  to  receive  a  road  altered  or  turned  according  to  law,  what  proceedings 

may  be  had,  539. 
How  persons  may  turn  or  alter  roads  on  their  own  lands  in  certain  cases,  539. 
County  courts  to  appoint  overseers  of  roads — Penalty  for  not  serving,  540. 
Not  to  be  compelled  to  serve  more  than  one  year  in  three,  540. 
Clerks  to  furnish  sheriffs  with  orders  appointing  overseers,  540. 

Sheriffs  to  apply  at  the  clerk's  office  for  the  same,  and  to  serve  the  overseers  with  copies,  540. 
Penalty  on  clerks  and  sheriffs  for  failing,  540. 
Overseers  to  summon  the  hands  liable  to  work  on  public  roads,  540. 
What  persons  are  liable,  540. 
Overseers  competent  to  prove  notice  to  hands,  541. 

No  person,  liable  to  work  on  public  roads,  to  be  exempt,  unless  exempted  by  the  coimty  court,  541. 
Overseers  may  lay  off  their  roads  into  equal  parts  among  their  hands,  541. 
Of  what  width  public  roads  and  causeways  shall  be,  541. 
Overseers  may  cut  poles  and  timber  and  dig  earth  on  any  adjoining  lands,  541. 
Owners  of  such  lands  may  petition  the  county  court  for  indemnification,  542. 
Overseers  to  make  footways  over  swamps  and  runs  of  water,  where  the  county  court  may  direct, 

542. 
Overseers  to  set  up  sign  posts  at  the  forks  of  roads,  542. 

Penalty  on  overseers  for  not  setting  up,  and  upon  persons  for  removing,  &c.  sign  boards,  542. 
Overseers  to  measure  the  roads  within  their  districts,  and  set  up  mile  posts,  542. 
Penalty  on  overseers  for  neglect  of  duty,  or  not  keeping  roads  in  repair,  543. 
Penalty  on  persons  for  erecting  bars  across  any  public  road,  543. 
County  courts  may  cause  bridges  to  be  erected  across  streams,  where  necessary,  at  the  expense  of  the 

county,  343. 
Contracts,  made  by  the  justices,  for  building  bridges,  to  be  binding  on  them  and  their  successors, 

543. 
Owners  of  water  mills,  situate  on  public  roads,  to  keep  up  bridges  connected  with  their  mill  dams, 

543. 
Penalty  on  owners  of  water  mills  for  failing  to  keep  up  bridges,  543- 
County  courts  may  authorize  the  building  of  toll  bridges,  544. 
County  courts  to  regulate  the  rates  of  ferriage,  544. 
Owners  of  ferries  may  build  toll  bridges  at  their  ferries,  544. 

County  courts  may  compel  keepers  of  ferries  and  owners  of  toll  bridges  to  give  bond,  &c  ,  544. 
How  persons  injured  may  proceed  to  recover  on  such  bonds,  545. 
Penalty  on  persons  not  empowered,  for  keeping  a  ferry,  or  transporting  persons  within  ten  miles  of 

any  ferry  for  pay — Proviso  for  persons  contracting  to  carry  the  mail,  545. 
Keepers  of  public  ferries  to  keep  up  a  house  of  entertainment  at  their  ferries,  545. 
Penalty  for  fastening  a  vessel  to  a  float  bridge,  546. 

In  what  cases  the  county  courts  may  order  the  laying  out  of  cart  ways — Proceedings  for  such  pur- 
pose, 446. 
Persons,  across  whose  lands  cart  ways  are  laid  out,  may  erect  bars  or  gates  across  the  same,  546. 
Cart  ways  to  be  free  for  all  persons  to  pass,  546. 
Appeals  allowed  from  orders  to  lay  out  cartways,  547. 
County  courts  may  authorize  the  erection  of  gates  across  public  roads,  547. 
How  a  person,  desirous  of  erecting  a  gate  across  a  public  road,  shall  proceed  to  obtain  an  order  for 

that  purpose — Appeal  allowed,  547. 
Gates  to  be  subject  to  tax,  547. 
Forfeitures,  how  to  be  recovered  and  applied,  547. 

Ferrymen  employed  on  any  ferry  of  a  public  road  to  be  exempt  from  militia  duty,  395. 
Officers  and  privates  attending  musters  and  reviews  not  to  pay  toll  or  ferriage  for  crossing  any 

bridge  or  ferry,  404. 
Constables  exempt  from  working  on  roads,  11(3. 
Keepers  of  public  mills  to  be  exempt  from  working  on  roads,  424. 
Tax  on  turnpikeM^s  and  gates,  511. 

Overseers  of  roads  not  to  order  out  hands  on  days  of  muster,  402. 
ROBBERY. 

Benefit  of  clergy  taken  away  from  highway  robbery,  191. 


700 


INDEX. 


ROBBERY,  (Continued.) 

Robbery  may  be  committed  in  taking  bank  notes,  195. 
ROPE  AND  WIRE  DANCERS.    See  Revenue. 
RUNAWAYS. 

Harboring  runaway  slaves  subject  to  a  penalty,  and  also  indictable,  209. 

Reward  for  taking  up  runaway  slaves,  575. 

Runaways  to  be  committed  to  jail  in  certain  cases,  and  notice  to  be  given,  575. 

Duty  of  a  justice  when  a  runaway  is  brought  before  him— And  also  of  the  constable  to  whom  such         j 
runaway  is  committed,  575.  f 

Penalty  on  any  sheriff,  &c.  for  employing  the  runaway,  or  keeping  him  longer  than  the  law  directs, 
or  for  suffering  him  to  escape,  576. 

Keepers  of  ferries  to  give  passage  to  constables,  &c.  conveying  runaways,  576. 

Notice  to  be  given  by  the  jailer,  in  certain  cases,  in  the  State  Gazette,  576. 

Runaway  slaves  may  be  sold,  in  certain  cases,  by  order  of  the  county  court,  576. 

Sheriff's  commissions  on  such  sale,  577. 

Sheriff  to  give  a  bill  of  sale,  577. 

Proceeds  of  such  sale,  how  appropriated,  577. 

Owner  may  recover  the  money  on  petition,  577. 

The  county  to  pay  the  expenses  of  runaways  in  certain  cases,  \vhich  shall  be  recovered  of  the  owner 
when  he  becomes  known,  577. 

Runaways  maybe  outlawed  in  certain  cases,  557. 

Three  justices  may  order  out  the  militia  to  suppress  outlawed  or  runaway  slaves,  418. 

SABBATH. 

No  person  to  do  any  work  on  the  sabbath  under  the  penalty  of  one  dollar,  607. 
Power  of  justices  as  to  this  offence,  608. 
Within  what  time  it  must  be  prosecuted,  608. 
Process  in  civil  cases  not  to  be  executed  on  the  sabbath,  155 
SALARIES  AND  PEES. 

Salaries  of  the  governor,  judges  of  the  supreme  court,  secretary  of  state,  treasurer,  comptroller,  pri- 
vate secretary  to  the  governor,  and  clerk  in  the  treasury  department,  548. 
When  paid,  549. 
Salary  of  the  adjutant  general,  549. 

of  the  judges  of  the  superior  courts,  549. 
Salaries  of  the  attorney  general  and  solicitors,  649. 
Salary  of  the  reporter  of  the  decisions  of  the  supreme  court,  549. 

of  the  clerk  of  the  supreme  court,  549. 
Pay  of  the  councillors  of  state,  550. 

of  the  clerk  and  doorkeeper  of  the  council,  550. 
of  the  members  of  the  General  Assembly,  550. 
of  the  clerks  and  officers  of  the  General  Assembly,  550. 

of  the  members  and  officers  of  the  General  Assembly,  how  ascertained,  certified  and  paid,  550. 
Fees  of  the  governor's  private  secretary,  551. 
of  the  secretary  of  state,  551. 

of  the  attorney  general  and  solicitors  for  the  State,  551. 
of  the  county  solicitors,  552, 
of  attorneys  at  law,  552. 
of  clerks  of  the  county  courts,  552. 
of  the  clerks  of  the  superior  court,  554. 
Clerks  to  have  no  fee  on  a  capias  in  certain  cases,  554. 
In  certain  state  cases,  clerks  and  sheriffs  to  have  only  half  fees,  554. 
Fees  of  sheriffs,  554. 

Sheriff  to  have  additional  fee  for  executing  process  out  of  his  county,  156. 
Sheriffs  not  allowed  commissions  upon  a  justice's  execution,  556. 
Clerks  of  the  superior  and  county  courts  to  keep  a  copy  of  the  clerks'  and  sheriffs'  fees  posted  up  in 

their  offices,  556.  ,, 

Clerks  of  courts  may  issue  execution  for  fees  in  certain  cases— Bill  of  co^s  to  be  annealed,  556. 
Fees  of  the  clerk  of  the  supreme  court,  556. 
of  clerk  and  masters  in  equity,  656. 


INDEX. 


701 


SALARIES  AND  FEES,  (Continued.) 
Compensation  of  county  trustees,  557. 
Fees  of  coroners,  557. 
of  constables,  557. 
of  registers,  558. 
of  entry  takers,  558. 
of  county  surveyors,  558. 
of  rangers,  558. 

of  commissioners  of  affidavits,  559. 
.  of  processioners,  559. 
of  standard  keepers,  559. 
of  jailers,  559. 
of  inspectors,  559. 
of  tobacco  pickers,  560. 
Fee  bills  to  be  made  out  in  dollars  and  cents — Receipts  to  be  given  in  the  same,  560. 
Fees  due  clerks,  sheriffs,  &c.  must  be  collected  within  three  years,  374. 
Compensation  to  the  president  and  members  of  the  board  of  internal  improvement,  350. 

of  the  president  and  directors  of  the  literary  fund,  384. 
For  sherifPs  compensation  for  holding  elections  in  any  case,  see  Elections. 
SCIRE  FACIAS.    See  Fines  and  Forfeitures. 

The  return  of  a  sheriff  on  a  scire  fadas  that  he  has  executed  the  same,  sufficient  evidence  of  the 
service,  173. 
SEALS. 

Governor  to  procure  a  seal  for  the  State,  to  be  called  the  Great  Seal  of  State  of  North  Carolina,  303. 
Also  a  seal  for  each  court  of  record,  303. 
Governor  may  procure  new  seals  when  necessary,  303. 
How  the  seals  are  to  be  prepared,  303. 
Expense  of  seals,  how  paid,  303. 

Seals  to  be  delivered  to  the  proper  officers,  who  are  to  receipt  for  the  same,  303. 
When    a  seal  to   a  grant,   &c.   is  lost  or  destroyed,   how  such  instrument    may  be  resealed, 
254,  304. 
SEAMEN. 

An  account  of  the  number  of  officers,  &c.  to  be  rendered  by  masters  of  vessels,  and  thirty  cents  per 

month  paid  on  each,  560,  561. 
Coasting  vessels  subject  to  like  regulations,  &c.,  561. 
Penalty  on  masters  for  failing  to  render  account,  &c.,  561. 

Collector  to  pay  the  money  to  the  president  and  directors  of  the  Wilmington  Marine  Hospital  Asso- 
ciation, 561. 
Money,  how  to  be  appropriated,  561. 
When  to  be  in  force,  561. 

Confirmed  by  an  act  of  congress,  and  declared  to  be  now  in  force,  561. 
SEAT  OF  GOVERNMENT. 

City  of  Raleigh  to  be  the  seat  of  government,  562. 
SECRETARY  OF  STATE. 
Bond  to  be  given,  563. 

Bond  to  be  deposited  with  the  treasurer,  563. 
Oaths  to  be  taken,  563. 
Form  of  secretary's  official  oath,  433. 
Remedy  on  the  bond,  563. 
Secretary  to  take  receipts  for  grants,  563. 
May  send  grants  by  mail,  564. 
Office  hours,  564. 

Compensation  to  the  secretary  as  librarian,  and  for  certain  other  services,  564. 
The  journals  of  the  two  houses  of  the  General  Assembly  to  be  deposited  in  the  office  of  secretary  of 

state,  who  shall  certify  copies  thereof,  when  required,  301. 
For  duty  of  the  secretary  of  state  in  regard  to  the  public  printing,  see  Public  Printing: 
Salary  of  the  secretary  of  state,  what  and  when  to  be  paid,  548,  549. 
Fees  of  the  secretary  of  state.  551. 
For  duty  of  the  secretary  of  state  in  relation  to  entries  and  grants,  see  Entries  and  Grants. 


*702  INDEX. 

( 
SEDITIOUS  PUBLICATIONS  OR  SPEECHES. 

Circulating  seditious  jrablications  among  slaves,  how  punishable,  194. 
Endeavoring  to  excite  insurrection  among  slaves  by  words,  how  punishable,  194. 
SENATORS  IN  CONGRESS.     See  Members  of  Cov^ress. 
SET-OFF. 

Defendant  may  prove  a  set-off  under  the  book  debt  law,  98. 

Defendant  may,  in  certain  cases,  plead  a  set-off,  or  give  it  in  evidence  under  the  general  issue  upon 
notice  to  the  plaintiff,  164. 
SHERIFF. 

Sheriff,  how  elected,  563, 

When  election  to  be  held,  and  how  returns  to  be  made,  565. 

Persons  having  the  greatest  number  of  votes,  to  be  declared  elected,  565. 

If  two  or  more  have  an  equal  number,  county  court  to  choose  between  them,  565. 

When  the  returns  shall  be  made,  565. 

Election  to  be  held  every  two  years,  566. 

County  court  to  decide  contested  elections,  566. 

Who  shall  be  ineligible  to  the  office  of  sheriff,  566. 

No  sheriff  shall  be  capable  of  being  re-elected,  who  has  failed  to  settle  for  public  dues,  566. 

Sheriff  elect  to  give  bonds  and  take  oaths  before  entering  upon  the  duties  of  his  office,  566. 

Form  of  sheriff's  official  oath,  435. 

Sheriff  to  renew  his  bonds  annually,  566.         --=>„„. 

Justices  to  meet  on  the  second  and  third  day  of  the   court  after  an  elaction,  to  take  the   sheriff 's 

bonds,  567. 
How  sheriff  may  be  removed  from  office,  567. 
Duty  of  the  coroner,  and  of  the  county  court,  in  such  case,  567. 
Coroner  to  give  bonds  and  take  oaths  when  required  to  act  as  sheriff,  567. 
Form  of  the  bond  to  be  given  by  the  sheriff  for  the  faithful  discharge  of  his  duty  in  office,  567. 
Sheriff  to  take  oaths,  568. 

Sheriff's  sureties  liable  for  fines  and  amercements,  568. 
Sheriff  not  compelled  to  serve  more  than  two  years,  568. 
May  resign  his  office  to  the  county  court,  568. 

Penalty  on  person  elected  sheriff  for  refusing  to  accept — Proviso  where  he  is  unable  to  give  secu- 
rity, 568. 
Who  not  compellable  to  serve  as  sheriff,  568. 
Sheriff  to  execute  all  process  from  courts — Penalty  for  neglect,  568. 

to  take  no  obligation,  from  any  person  in  his  custody,  but  such  as  is  payable  to   himself, 
&c.,  569. 

permitting  an  escape  in  civil  cases,  to  be  liable  to  an  action  of  debt,  569. 

not  to  farm  his  office,  569. 

to  have  the  custody  of  the  public  jail,  569. 

and  his  sureties  to  be  liable  for  claims  put  into  his  hands  for  collection,  569. 
The  slieriff  of  Wake  county  shall  attend  the  supreme  court,  189. 
Sheriffs  to  account  for  and  pay  over  moneys  remaining  in  their  hands  for  three  years  in  like  manner 

as  clerks,  &c.,  428. 
Suits  on  the  official  bonds  of  sheriffs,  &c.  may  be  brought  by  the  party  injured,  443. 
Declaration  must  shew  in  whose  behalf  the  suit  is  brought,  443. 
Person  injured  may  at  his  election  sue  the  officer  in  an  action  on  the  case,  443. 
Remedy  before  a  justice  of  the  peace  against  sheriffs  and  other  officers  who   neglect  to  pay  over 

moneys  received  within  the  jurisdiction  of  a  justice,  443. 
Summary  remedy  in  court  against  sheriffs  and  other  officers  failing  to  pay  moneys  received,  443. 
Twelve  per  cent,  damages  allowed  on  money  unlawfully  detained  by  an  officer,  444. 
Clerks  of  the  county  court  to   record  the  names  of  the  justices   present   when   appointments    are 

made,  444. 
Such  justices  failing  to  take  bond,  are  to  be  held  securities  themselves,  444. 
Copy  of  the  record  to  be  evidence  against  them,  444. 
Sheriff's  bond  for  the  collection  of  the  county  and  poor  taxes,  123. 
His  bond  for  the  collection  of  the  state  taxes,  531. 
Pees  of  sheriffs,  156,  554. 
In  certain  cases  sheriffs  to  have  only  half  fees,  554. 


INDEX.  703 

SHERIFFS,  (Continued.) 

Sheriffs  not  allowed  commissions  on  a  justice's  execution,  556. 

For  sheriff's  duty  in  regard  to  bail  in  civil  cases,  see  Bail  in  Civil  Cases. 

powers  and  duty  in  collecting  and  accounting  for  the  county  taxes,  fines  and  forfeit- 
ures, see  County  Revenue  and  Charges. 
duty  in  serving  and  returning  process  from  courts,  see  Courts,  County  and  Superior, 

Courts  of  Equity,  Court,  Supreme,  Execution. 
duty  in  arresting  felons,  and  in  executing  and  returning  process  in  criminal  cases,  see 

Criminal  Proceedings. 
duty,  powers  and  compensation  for  holding  elections,  see  Elections. 
Property,  debts,  &c.  contained  in  any  schedule  filed  by  an  insolvent  debtor  to  vest  in  the  sheriff, 

327. 
Duty  of  the  sheriff  thereupon,  327. 

Suits  on  sheriff's  bonds  must  be  brought  within  six  years,  374. 
For  sheriff's  duties  and  liabilities  in  collecting  and  accounting  for  the  poor  tax,  see  Poor. 

duty  in  connection  with  prisons  and  prisoners,  see  Court  Houses,  Prisons  and  Stocks, 

Prisojiers. 
duties  and  liabilities  and  compensation  in  collecting  and  accounting  for  the  public  or 
state  taxes,  see  Revenue. 
Sheriffs  to  apply  for  orders  appointing  overseers  of  roads  and  to  serve   the  overseers  with  copies, 
540. 
SHINGLES.     See  Inspections  and  Inspectors. 
SLANDER. 

If  damages  are  under  four  dollars,  plaintiff  shall  recover  no  more  costs  than  damages,  164. 
What  words  spoken  of  women  shall  be  actionable,  570. 
SLAVES  AND  FREE  PERSONS  OF  COLOR. 

Negroes,  mulattoes,  or  persons  of  color,  imported  contrary  to  act  of  congress,  to  he   sold  for  the 

use  of  the  State,  573. 
Sheriff's  duty  in  seizing  and  selling,  573. 

when  such  negroes,  &c.  abscond,  573. 
Persons  giving  notice  of  such  negroes,  &c.  to  have  one  fifth  of  their  value,  573. 
Sales  to  be  made  at  the  court  house  and  sheriff  to  give  hills  of  sale,  574. 
Sheriff's  commissions,  &c.  for  making  such  sales,  574, 
Certain  former  purchases  confirmed,  574. 

The  issue  of  negroes,  &c.  imported,  included  in  the  foregoing  provisions,  575. 
Penalty  for  bringing  slaves  from  certain  states,  575. 
"^-lleward  for  taking  up  runaways,  575. 

Runaways  to  be  committed  to  jail  in  certain  cases,  and  notice  to  be  given,  575. 

Duty  of  a  justice  when  a  runaway  is  brought  before  him — And  also  of  the  constable  to  whom  such 

runaway  may  be  committed,  575. 
Pen  ..ty  on  any  sheriff,  &c.  for  employing  the  runaway,  or  keeping  him  longer  than  this  act  directs, 

or  for  suffering  him  to  escape,  576. 
Keepers  of  ferries  to  give  passage  to  constables,  &c.  conveying  runaways,  576. 
Notice  to  be  given  by  the  jailer,  in  certain  cases,  in  the  State  Gazette,  576. 
Runaw  v/  slaves  may  be  sold,  in  certain  cases,  by  order  of  the  county  court,  576. 
Sheriff'-,  commissions  on  such  sale,  577, 
Sheriff  to  give  a  bill  of  sale,  577. 
Proceeds  of  such  sale,  how  appropriated,  577. 
Owner  may  recover  the  money  on  petition,  577. 
The  county  to  pay  the  expenses  of  runaways  in  certain  cases,  577. 
Such  expenses  to  be  recovered  of  the  owner  when  he  becomes  known,  577. 
Slaves  offering  forged  free  passes,  to  be  whipped,  577. 

Runaway  slaves  may  be  outlawed  in  certain  cases,  577.  ♦- 

Slaves  not  to  go  armed,  nor  hunt  with  a  gun,  578. 

not  to  go  off  their  master's  plantation  without  a  written  permit,  57S.  1 

not  to  raise  stock,  578  . 
Owners  of  slaves,  not  properly  feeding  them,  &c,  to  be  liable  for  their  stealing  corn,  &c.,  578. 
•     Slaves  not  to  teach  each  other  to  read,  &c.,  573. 
,.,  not  to  sell  spirituous  liquors,  578. 


704 


INDEX. 


^ 


SLAVES  AND  FREE  PERSONS  OF  COLOR,  (Continued.) 
Slaves  not  to  play  at  any  game  for  money,  &c.,  580.     j       \ 
'     Penalty  on  slaves  for  burning  the  woods,  579.    '"^  i^-w-a^-'U-^ 

Slaves  not  to  be  allowed  to  hire  their  own  time — Proceedings  in  such  cases,  579. 

not  to  go  at  large  as  freemen,  580. 
Negroes,  &c.  not  to  meet  for  the  purpose  of  dancing,  &c.  without  a  written  permit,  580. 
Slaves,  &c.  not  to  preach  in  public,  580. 
Conspiracy  of  slaves,  how  punishable,  580. 
Insurrectian  of  slaves,  how  punishable,  580. 

Free  persons  joining  conspiracy,  &c.  of  slaves,  how  punishable,  531. 
What  evidence  shall  be  received  in  cases  of  insurrection,  &c.,  581. 
Slaves  convicted  of  conspiracy,  &c.  to  suffer  death  or  be  transported,  581. 
Slaves  returning  voluntarily  from  transportation,  to  suffer  death — If  brought  by  their  owner,  &c.  to 

be  forfeited,  581. 
Slaves,  for  trivial  offences,  to  be  tried  before  a  justice  of  the  peace,  581. 
What  jurisdiction  the  county  court  shall  have  over  offences  committed  by  slaves,  582. 
Jurisdiction  of  the  superior  court  over  offences  committed  by  slaves,  582. 
I,' Trials  of  slaves  may  be  removed  as  in  cases  of  free  persons,  582. 
Slaves  shall  be  entitled  to  a  trial  by  jury  when  tried  in  court,  582. 

for  capital  offences,  to  be  tried  on  presentment  or  indictment,  and  be   allowed  challenges  of 
jurors,  582,  583. 
'""*'-* —       allowed  the  benefit  of  clergy,  583. 

Owner  of  slave  to  have  notice  of  the  trial  in  certain  cases,  583. 

to  pay  the  costs  of  such  trial,  &c.,  583. 
Where  the  owner  cannot  be  found,  the  court  shall  appoint  counsel  for  slaves,  583. 
Against  and  for  whom  slaves  and  other  persons  of  color  may  be  witnesses,  583. 
Court  to  give  a  charge  to  a  negro,  &c.  examined  as  a  witness,  584. 
Negro,  &c.  committing  perjury,  to  be  punished  as  a  free  man,  584. 
In  eases  of  insurrection,  &c.  a  commission  of  oyer  and  terminer  may  issuej  584. 
Compensation  to  the  prosecuting  officer  in  such  case,  584. 
Appeal  allowed  from  such  court  of  oyer  and  terminer  to  the  supreme  court,  584. 
Judge  may,  in  certain  cases,  continue  the  cause  to  the  regular  term  of  the  superior  court,  584. 
I.  \    How  slaves  may  be  emancipated,  585. 
I     Owner  to  give  bond  conditioned  for  slaves  leaving  the  State,  &c.,  585. 
•■    Emancipated  slaves  to  leave  the  State  in  ninety  days,  585. 
v    How  slaves  may  be  emancipated  when  directed^so  to  be  done  by  will,  585. 
^'Slaves  over  fifty  years  of  age  tnay  be  emancipated  for  meritorious  services,  586. 
Emancipated  slaves,  not  leaving  the  State,  or  returning,  to  be  arrested  and  sold,  586. 
In  such  case,  suit  may  also  be  brought  upon  the  bond  given  by  the  owner,  586. 
Grand  jury  to  present  all  slaves  violating  this  act,  587. 
No  slave  to  be  set  free  but  according  to  this  act,  587. 
\^.    Free  negroes,  &c.  not  to  migrate  into  this  State,  587. 

Penalty  for  coming  into  the  State  and  not  leaving  after  twenty  days'  notice,  587. 

How  to  proceed  against  free  negroes,  &c.  coming  into  this  State,  537. 

After  term  of  service,  to  remove  under  like  penalties,  588. 

Penalty  on  persons  bringing  free  negroes,  &c.  into  this  State,  588. 

Vagabond  free  negroes,  &c.  how  to  be  dealt  with,  588. 

Money  arising  from  the  hire  of  free  negroes,  &c.  to  be  paid  to  the  county  trustee,  588. 

County  court  may  bind  out  the  children  of  free  negroes,  &c.  in  certain  cases,  589. 

Persons  to  whom  free  negroes,  &c.  are  hired,  to  feed  them,  &c.,  and  not  to   remove  them  from  the 

county,  589. 
Free  negroes,  &c.  charged  with  migrating  into  this  State,  &c.,  to  be  tried  by  a  jury,  589. 
Who  shall  beideemed  free  negroes,  589. 
Grand  juries  to  be  charged  and  to  make  presentment  of  the  offences  of  free  negroes,  &c.  coming 

into  this  State,  589. 
Free  negroes.  &c.  migrating  from  this  State,  and  being  absent  ninety  days,  not  to  be  permitted  to 

return,  590. 
Free  negroes  not  to  intermarry  with  slaves,  590. 
Any  person  of  color  attempting  to  commit  a  rape  on  a  white  woman  to  suffer  death,  590. 


J 


INDEX. 


705 


SLAVES  AND  FREE  PERSONS  OP  COLOR,  {Continued.) 
Free  negroes,  &c.  not  to  gamble  with  slaves,  590. 

not  to  suffer  slaves  to  gamble  in  their  houses,  590. 

not  to  entertain  slaves  in  their  houses  at  certain  times,  591. 

Slaves  not  to  trade  with  each  other  for  certain  articles,  591. 

Free  negroes,  &c.  not  to  trade  with  slaves  for  certain  articles,  591. 

Appeals  allowed  in  cases  of  slaves  charged  with  trading  with  each  other,  and  free  negroes  charged 

with  trading  with  slaves,  591. 
Free  negroes,  &c.  not  to  hawk  or  peddle  without  a  license,  591. 
Fines  on  free  persons  of  color,  how  to  be  enforced,  591. 
How  such  free  persons  of  color  shall  be  hired  out,  592. 
•Tersons  hiring  them,  to  have  the  same  authorities,  and  be  under  the  same  liabilities,  as  masters  of 
apprentices,  592. 
Further  provisions  in  cases  of  hiring  out  free  persons  of  color  for  fines,  &c,,  592. 

—  v,-Killing  a  slave  homicide,  as  at  common  law,  192. 
_  V- Stealing  slaves  punishable  with  death,  192. 

—  s.^ Concealing,  &c.  a  slave  with  intent  to  remove  him  out  of  the  State,  punishable  with  death,  192. 

— .  v'  Taking  a  free  person  of  color  from  this  State  to  another  with  intent  to  sell  him,  punishable  with 
death,  193. 
Circulating  seditious  publications  among  slaves,  how  punishable,  194. 
Endeavoring  to  excite  insurrection  among  slaves  by  words,  how  punishable,  194. 
v^ersons  stealing  or  selling  free  negroes  in  this  State,  how  punishable,  208. 
The  clerk  who  issues  a  license  for  the  marriage  of  a  free  negro,  &c.  with  a  white  person,  and  the 

justice,  &c.  who  marries  such  persons,  shall  be  subject  to  indictment,  208. 
Persons  harboring  runaway  slaves,  how  punishable,  209. 
Teaching  slaves  to  read  or  write,  the  use  of  figures  excepted,  indictable,  209. 
"-^Penalty  for  trading  with  slaves  for  certain  articles,  209. 
^Proviso  that  such  trading  may  be  in  the  day  time,   and  -with  the  written  permit  of  the  master,  &c. 

of  such  slaves,  210. 
'^his  proviso  not  to  extend  to  spirituous  liquors,  fire  arms,  powder,  shot,  or  lead,  210. 
Penalty  on  masters  of  vessels  for  entertaining  slaves  and  free  persons  of  color  on  board  their  vessels 

at  certain  times,  without  a  written  permit,  210. 
Trading  with  slaves  to  be  indictable,  210. 
^'-'''^hat  circumstances  shall  be  taken  as  presumptive  evidence  of  such  trading,  against  the  owners  of 
stores  and  shops,  210. 
Penalty  for  fraudulently  giving  a  slave  a  written  permit  to  trade,  211. 
Appeals  allowed  in  case  of  prosecutions  or  indictment  for  trading  with  slaves,  211. 
v^ifts  of  slaves  must  be  in  writing,  attested  and  registered,  230. 
Proviso  as  to  advancements  to  children,  230. 
All  sales  of  slaves  must  be  in  writing,  attested  and  registered  except  bona  fide  sales  accompanied 

with  a  transfer  of  possession,  230. 
All  written  transfers  of  slaves  must  be  registered  in  the  county  where  the  purchaser  resides,  unless 

the  seller  is  to  retain  possession,  231. 

to  be  proved  on  any  trial  by  the  subscribing  witness  if  to  be  found, 
231. 
Certain  limitations  of  slaves  by  deed  to  be  valid,  231. 
Penalty  on  slaves  for  killing  stock  in  certain  cases,  284. 
Contracts  for  the  sale  of  land  and  slaves  must  be  in  writing.  &c-,  290. 
^^  Adverse  possession  of  a  slave  for  three  years  to  give  title — Proviso,  as  to  parol  gifts,  376.  • 

White  persons  prohibited  from  marrying  Indians  or  persons  of  color,  386. 

Penalty  on  ministers  and  justices  for  marrying  a  white  person  to  an  Indian  or  person  of  color,  387. 
Wardens  to  provide  for  infirm  slaves  neglected  by  their  owners  and  may  recover  from  the  owners — 

Owners  to  have  previous  notice,  475.  ■»  ■ 

Executors,  administrators  and  guardians  liable  to  the  wardens  if  they  neglect  to  provide  for  slaves 

under  their  care,  476. 
Duty  of  the  wardens  when  the  owner  lives  in  another  county,  476. 
Two  wardens  may  act  in  the  case  of  such  slave,  476. 

Power  of  the  wardens  when  a  person  having  infirm  slaves   is  about   to  remove  out  of  the  county, 
47C. 

VOL.  I.  89 


\ 


706 


INDEX. 


SLAVES  AND  FREE  PERSONS  OF  COLOR,  (Continued.) 

Tax  on  slaves  brought  from  another  state  to  this  State  for  sale,  515. 
^    How  and  where  sales  of  land  and  slaves  under  execution  shall  be  made,  267. 
Free  persons  of  color  not  to  be  enrolled  in  the  militia  except  as  musicians,  395. 
No  slave  to  act  as  pilot  over  any  bar,  470. 
SLEIGHT  OF  HAND  PERFORMERS.     See  Revenue. 
SOLICITORS.     See  Attorney  General  and  Solicitors. 
STAGE  PLAYERS.     See  Revenue. 
STANDARD  KEEPER.    See  Weights  and  Measures. 
STANDING  MUTE. 

Plea  to  be  entered  for  a  defendant  when  he  stands  mute  on  a  criminal  charge,  218. 
STATE  HOUSE.    See  Public  Buildings. 
STAVES.     See  Inspections  and  Iiispectors. 
STOCKS.     See  Court  Houses,  Prisons  and  Stocks. 
STOLEN  GOODS. 

Receivers  of  stolen  goods,  how  punishable,  219. 

On  conviction  of  a  felon  for  robbing  or  stealing  goods,  &c.  the  goods  shall  be  restored,  219. 
STRAYS. 

County  courts  to  appoint  one  or  more  rangers  for  each  county,  593. 

Form  of  ranger's  oath,  437. 

Information  of  strays  to  be  made  to  rangers,  593. 

Oath  of  valuers  of  strays,  440. 

Stray  to  be  valued,  594. 

Rangers  to  keep  a  book,  594. 

To  advertise  strays,  594. 

Reward  to  the  taker  up,  594. 

Property  not  proved,  to  belong  to  the  taker  up  after  twelve  months — May  be  reclaimed,  594. 

How  expense  of  keeping  strays  shall  be  ascertained,  59i. 

When  the  stray  is  not  claimed  within  twelve  months,  two  thirds  of  the  appraised  value  is  to  be  paid 

to  the  county  trustee,  595. 
How  owner  may  reclaim  the  two  thirds,  595. 

Taker  up  to  give  bond,  when  the  value  of  the  stray  exceeds  four  dollars,  595. 
Taker  up  not  answerable  for  the  death  of  the  stray,  595. 
None  but  freeholders  shall  take  up  strays,  595. 
Rangers  authorized  to  administer  oaths,  596. 
Rangers  to  make  returns  to  the  county  court,  596. 
Ranger's  books  to  be  open  for  public  inspection,  596. 
County  trustee  to  collect  moneys  accruing  under  this  act,  596. 
Penalty  on  rangers  for  not  paying  over  moneys,  596. 
Duty  of  the  taker  up,  when  the  stray  dies  or  is  reclaimed,  597. 
How  the  penalties  imder  this  act  shall  be  recovered,  597. 
Fees  of  rangers,  558. 
STUD  HORSES  AND  JACKASSES.    See  Revenue,  Religious  Societies.  ' 
SUICIDE. 

Forfeiture  for  suicide  abolished,  197. 
SUITS.    See  Courts,  County  and  Superior. 
Tax  on  suits  at  law,  124. 
On  suits  in  equity,  124. 
SiTtlETY  AND  PRINCIPAL. 

Endorsers  of  bills,  Ijonds  and  promissory  notes  to  be  liable  as  sureties,  95. 

Defendants  upon  trial  may  show  that  they  are  sureties,  and  the  jury  or  justice  shall  discriminate  the 

principal  from  the  sureties,  173. 
In  such  case  the  officer  shall  levy  first  on  the  property  of  the  principal,  and  the  property  of  the 

principal  shall  be  first  sold,  173. 
Summary  remedy  for  sureties  against  their  principals,  597. 

One  siu-ety  may  sue  his  co-surety  for  a  ratable  proportion  of  the  debt  paid  for  the  principal,  598. 
In  judgments  before  a  justice,  the  surety  may  dissent  from  the  stay  of  execution,  and  then  shall  not 

be  liable  to  the  surety  for  the  stay,  598. 
Officer,  how  to  collect  in  such  cases,  598. 


INDEX. 


707 


SURETY  AND  PRINCIPAL,  (Continued.) 

Surety  paying  a  debt,  shall  have  the  same  priority  as  his  creditor  against  executors  and  administra- 
tors, 598. 

Relief  for  sureties  of  executors  and  administrators  in  the  county  courts,  280. 

Power  of  the  superior  court  in  such  cases,  280. 

Remedy  for  sureties  of  guardians  when  such  sureties  are  likely  to  suiTer^  312. 
SURPLUS    REVENUE   OF   THE    UNITED   STATES.      See  Internal  Improvements,    Literary 

Fund. 
SURVEYS  AND  SURVEYORS. 

In  suits  involving  questions  of  boundary,  the  court  may  order  a  survey — Proceedings  thereupon, 
172. 

Appointment  of  surveyors,  249. 

Surveyors  to  give  bonds  and  take  oaths,  250. 

Form  of  surveyor's  oath,  437. 

Surveyors  may  appoint  deputies,  250. 

How  surveys  or  entries  to  be  made  and  returned,  251. 

Surveys  to  be  according  to  priority  of  entry,  251. 

How  surveyors  to  have  surveys  made  for  themselves,  252. 

Certain  grants,  heretofore  issued  to  surveyors,  confirmed,  254. 

How  to  correct  mistakes  made  by  surveyors  and  other  officers  in  perfecting  titles  to  land  upon 
entries,  254. 

Fees  of  county  surveyors,  558. 

Copies  of  plats  of  survey  from  the  secretary's  office  may  be  read  as  evidence,  263. 

For  remedy  on  the  bonds  of  surveyors,  see  Official  Bonds. 

Purchaser  of  land  sold  for  taxes,  to  have  his  land  surveyed,  525 . 

Penalty  on  the  county  surveyor  for  refusing — If  he  refuses,  another  may  make  the  survey,  525. 

Fees  of  county  surveyors,  558. 
SWAMP  LANDS.     See  Literary  Fund. 

TAR.     See  Inspections  and  Inspectors. 

TAVERNS.    See  Ordinaries. 

TAXES.     See  Revenue,  County  Revenue  and  Charges. 

TOBACCO.     See  Inspections  and  Inspectors. 

TOLL  BRIDGES.     See  Roads,  Ferries  and  Bridges. 

TOWNS. 

Owners  of  lots  to  have  further  time  to  complete  buildings,  599. 

Commissioners  of  towns  may  lay  a  tax  on  dogs,  599. 

Penalty  for  failing  to  give  them  in,  599. 

Commissioners  of  towns  to  publish  a  list  of  taxes — Penalty  for  failure,  599. 

The  police  authorities  of  a  town  may  petition  for,  and  receive  arms  upon  giving  bonds,  485. 

Commissioners  of  seaport  towns  to  have,  in  certain  cases,  the  authority  of  commissioners  of  naviga- 
tion, 496. 

What  shall  be  considered  nuisances  in  the  seaport  towns,  496. 

Owners  of  lots  in  seaport  towns  to  keep  them  drained  at  certain  seasons,  496. 

Penalty  for  neglect,  497. 

Commissioners  may  remove  the  nuisance  at  the  expense  of  the  owner,  497. 

Officers  of  police  in  incorporated  towns,  to  adopt  measures  for  preventing  contagious  diseases, 
497. 
TREASURER  OF  PUBLIC  BUILDINGS. 

To  be  appointed  by  the  county  court,  who  are  also  to  fill  vacancies— To  give  bond — His  duty 
133.  *  ' 

To  settle  liis  accounts  annually  with  the  court,  133. 

Penalty  for  failure,  134. 

His  duty  as  to  repairs,  &c.  of  public  buildings,  134. 
TREASURER  OF  THE  STATE. 

Treasurer  to  be  biennially  elected,  600. 

Oaths  to  be  taken  and  bond  given,  600. 

Form  of  the  treasurer's  official  oath,  433. 

On  failure  to  give  bond,  another  to  be  elected,  601. 


708  INDEX. 

TREASURER  OP  THE  STATE,  (Continued.) 

If  the  failure  occur  during  the  recess,  governor  and  council  to  appoint,  601. 
How  judgment  may  be  entered  on  the  bond,  601. 
Treasurer  to  keep  an  account  of  receipts  and  expenditures,  602. 
To  report  to  the  General  Assembly  at  each  session,  601. 

Committee  of  finance,  at  each  session,  to  examine  into  and  report  the  state  of  the  treasury,  602. 
No  grant  or  warrant  to  be  paid,  unless  it  express  the  cause  for  which  it  issued,  602. 
No  warrant  to  be  paid  by  the  treasurer,  unless  first  entered  in  the  comptroller's  office  and  cer- 
tified by  him,  113. 
Names  of  defaulting  revenue  ofljcers  to  be  published,  602. 
Monthly  settlements  to  be  made  by  the  treasurer  and  comptroller,  602. 
Balance  in  the  treasury  to  be  deposited  in  the  banks,  602. 
Duplicate  certificates  of  deposits  to  be  taken,  602. 
Treasurer  may  check  for  the  money  deposited,  602. 

Duty  of  the  treasurer  and  governor,  when  a  bank  is  suspected  of  insolvency,  603. 
Treasurer,  in  all  cases,  to  give  a  duplicate  receipt,  603. 
No  receipt  good   without  the  comptroller's  endorsement,  603. 
Accounts   of  the   literary  and   internal   improvement  funds  to  pass   through  comptroller's  office, 

603. 
Certificates  of  stock  belonging  to  the  State,  to  be    registered    and   endorsed  by  the  secretary  of 

state,  603. 
Comptroller  to  endorse  them,  when  allowed  as  a  credit  to  the  treasurer,  603. 
Copy  of  certificate  from  the  secretary's  office  to  be  good,  when  the  original  is  lost,  603. 
Treasurer,  in  certain  cases,  may  appoint  agents,  603. 

may  move  for  judgment  against  such  agents,  as  against  sheriffs,  604. 
may  employ  a  clerk,  604. 
Office  hours,  604, 

Penalty  for  failing  to  proceed  against  delinquents,  604. 
Proceedings  against  the  treasurer  for  defalcation,  604. 

Priority  of  the  State  in  case  of  the  death  or  insolvency  of  the  treasurer,  604. 
Fraud  in  the  treasurer,  how  punished,  605. 
Salary  of  the  treasurer,  what  and  when  to  be  paid,  548,  549. 

of  the  clerk  of  the  treasury  department,  what  and  when  to  be  paid,  549. 
Treasurer  may  have  blanks,  tfec.  printed  for  the  use  of  his  office,  at  the  expense  of  the  State,  491. 
For  treasurer's  duty  in  regard  to  auctions  and  auctioneers,  see  Auctions  and  Auctioneers. 
Duty  of  the  treasurer  in  taking  judgment  against  a  defaulting  officer,  531. 
Summary  judgment  may  be  taken,  at  the  instance  of  the  treasurer,  against  all  defaulting  officers, 

532. 
A  summary  judgment  may  betaken  by  the  treasurer  against  persons  indebted  to  the  State,  532. 
For  duty  of  the  treasurer  in  relation  to  entries  and  grants,  see  Entries  and  Grants. 
TRESPASS.     See  Fences. 

When  actions  of  trespass  vi  et  armis,  or  on  the  case,  for  injuries  to  real  or  personal  property  shall  not 

abate,  57. 
In  trespass  for  assault  and  battery,  if  the  damages  be  assessed  under  four  dollars,  plaintiff  shall  not 

recover  more  costs  than  damages,  164. 
In  trespass  quare  clauswn /regit ^  the  defendant  may  disclaim,  and  plead  tender,  &c.,  164. 
In  actions  of  trespass,  &c.  if  there  be  more  than  one  defendant,  and  one  or  more  be  acquitted,  the 

person  so  acquitted  shall  recover  full  costs  unless  the  judge  certifies,  &,c.,  164. 
Limitations  to  actions  of  trespass,  &c.,  372,373. 
TRUST.     See  Mortgages  and  Deeds  in  Trust. 

Executions  may  be  levied  upon  goods,  lands,  &c.  held  in  trust  for  the  person  against  whom  the  exe- 
cution issued,  266. 
Purchaser  under  such  execution  to  hold  the  property  discharged  of  the  trust,  266. 
TRUSTEES.     See  Infants,  Religious  Societies. 
TUMBLERS.     See  Revenue. 
TURPENTINE.     See  Inspections  and  Inspectors. 


INDEX. 


709 


UNIVERSITY. 

Merchants,  &c.  not  to  sell  goods,  &c.  to  students  of  the  university,  without  the  consent  of  faculty, 
605. 

No  license  to  retail  spirituous  liquors  at  Chapel  Hill  shall  be  granted,  606. 

Electioneering  treats,  also  prohibited,  606. 

Theatrical  performances,  &c.  at  Chapel  Hill,  or  -within  five  miles  thereof,  prohibited,  606. 

Billiard  tables,  also  prohibited,  606. 

Persons  ofiending  against  these  provisions,  to  be  indicted,  606. 

Estate  remaining  seven  years  unclaimed  in  the  hands  of  executors,  &c.  to  be  paid  over  to  the  trus- 
tees of  the  university,  277. 

Trustees  of  the  university  liable  in  like  manner  as  heirs  or  devisees  for  the  lands  of  a  deceased  debt- 
or in  their  hands,  366. 
USES. 

In  conveyances  to  uses,  the  possession  shall  be  transferred  without  livery  of  seizin,  259. 
USURY. 

Not  more  than  six  per  centum  to  be  taken  for  interest,  606. 

All  contracts,  assurances,  &c.  for  more  than  lawful  interest,  void,  606. 

Persons  taking  more,  to  forfeit  double  the  value,  607. 

VAGRANTS. 

Vagrants,  how  punishable,  i20I. 
VESSEL.     See  Pilots  and  Commissioners  of  Navigation. 

Penalty  for  fastening  a  vessel  to  a  float  bridge,  546. 
VICE  AND  IMMORALITY. 

No  person  to  do  any  work  on  the  Sabbath,  under  penalty  of  one  dollar,  607. 

Penalty  on  persons  for  profanely  swearing  in  the  hearing  of  a  justice,  608. 

A  public  officer  to  pay  double,  608. 

Penalty  for  profanely  swearing  in  a  court  of  record,  603. 

Penalty  for  getting  drunk,  608. 

Power  of  justices  as  to  offences  under  this  act,  608. 

Proviso  as  to  time  within  which  offences  must  be  prosecuted,  608. 

Fines,  how  appropriated,  608. 

Penalty  for  committing  fornication,  609. 

WARDENS  OF  THE  POOR.     See  Poor. 
WARRANTS.     See  Justices. 
WARRANTY. 

What  warranties  shall  be  void,  260. 
WASTE. 

Who  entitled  to  the  action  for  waste,  and  against  whom,  609. 

If  tenant  for  life  aliens,  he  is  still  liable,  609.  y 

Plaintiff  shall  recover  treble  damages,  and  the  place  wasted,  609. 

Action  will  lie  by  one  joint  tenant,  &c.  against  his  co-tenant,  610. 

Heirs  shall  have  the  action,  610. 
WEIGHTS  AND  MEASURES. 

What  weights  aud  measures  to  be  used,  610. 

Justices  to  procure  weights  and  measures — Also  brands  and  stamps,  610. 

Standard  keeper  to  be  appointed,  610. 

His  oath  and  bond,  611. 

Form  of  standard  keeper's  oath,  436. 

Weights  and  measures  to  be  carried  to  the  standard  keeper,  by  the  persons  using  them,  once  in  two 
years,  to  be  tried,  611. 

Standard  keeper  to  give  certificates,  611. 

Penalty  for  not  having  weights  and  measures  examined,  611. 

Penalty  for  selling  or  buying  by  weights  or  measures  not  branded  or  stamped,  611. 

What  shall  be  the  measure  of  an  acre  of  land,  611. 

Fees  of  standard  keeper,  559. 
WIDOWS. 

In  what  case  the  widow  shall  take  as  heir,  237. 


710  INDEX. 

WIDOWS,  {Continued.) 

Widows  may  dissent  from  the  will  of  their  husbands,  and  upon  doing  so,  or  in  cases  of  intestacy, 
shall  have  one  third  of  the  lands  of  which  their  husbands  died  seized  and  possessed  assigned 
to  them  for  life  as  dower,  612. 

Proviso,  that  fraudulent  conveyances  shall  not  defeat  dower,  613. 

Dower  to  include  the  dwelling  house,  &c.,  613. 

Widows  to  petition  for  dower,  and  the  proceedings  thereon,  613. 

Jury  not  restricted  to  assign  dower  in  each  separate  tract,  613. 

Proceedings  on  petition  for  dower  to  be  in  a  simimary  way,  614. 

Duty  of  the  jury  in  laying  off  dower,  when  the  widow  has  dissented  from  her  husband's  will,  614. 

Widows  to  be  endowed  of  equities  of  redemption  or  other  equitable  or  trust  estates,  614. 

How  widows  shall  proceed  who  maybe  entitled  to  dower  in  this  State,  and  also  in  other  states,  614. 

Dower  not  to  be  subject  to  the  deceased  husband's  debts,  615. 

Widows  may  bequeath  the  crops  growing  on  their  dower  lands,  615. 

Alienation  by  widows  of  their  dower  lands,  with  or  without  warranty,  to  pass  nothing  but  the  dower 
interest,  615. 

If  a  wife  leave  her  husband,  and  go  off  with  an  adulterer,  she  shall  lose  her  dower,  615. 

To  what  share  of  the  personal  estate  a  widow  shall  be  entitled  in  case  of  her  husband's  intes- 
tacy, 615. 

How  the  widow's  share  of  the  personal  estate  shall  be  allotted  to  her  when  she  dissents  from  her 
husband's  will,  615. 

Widow,  in  relation  to  creditors,  shall  be  considered  a  legatee,  615. 

Provision  for  widows  of  intestates  dying  and  leaving  no  kindred  that  are  known,  616. 

Widow  to  give  bond  to  refund  in  case  any  of  the  next  of  kin  should  appear,  616. 

Widows  of  intestates  may  take  possession  of  the  whole  personal  estate  till  administration  be 
granted,  616. 

Widow  may  petition  the  county  court  for  year's  provisions— How  the  same  shall  be  allotted  to 
her,  617. 

Where  there  is  no  crop,  &c.  on  hand  the  value  of  the  year's  provisions  must  be  assessed  in  money,  or 
specific  articles  of  personal  property  be  assigned  to  her,  617. 

The  crop,  stock,  &c.  allotted  to  the  widow,  shall  be  vested  in  her  for  the  use  of  herself  and  fam- 
ily, 617. 

The  administrator  shall  not  be  accountable  for  the  same  as  assets,  618. 

Widow  to  have  certain  articles  in  addition  to  her  year's  provisions,  618. 

Widows,  dissenting  from  their  husband's  will,  to  be  entitled  to  a  year's  provisions,  618. 

The  costs  of  the  petition  for  a  year's  provision  to  be  paid  by  the  administrator  out  of  the  assets  of 
the  estate — Proviso,  618. 

Where,  upon  a  petition  for  the  sale  of  land  for  partition,  there  is  dower  on  the  land,  the  court  may 
decree  a  sale,  and  apportion  the  dower  interest,  453. 
WILLS  AND  TESTAMENTS. 

What  shall  be  a  good  will  of  lands,  619. 

What  a  good  nuncupative  vv^ill,  where  the  estate  exceeds  two  hundred  dollars,  620. 

How  a  nuncupative  will  shall  be  proved,  G20. 

The  county  court  shall  have  jurisdiction  of  the  probate  of  wills,  621. 

Appeal  allowed,  621. 

SV here  and  how  wills  shall  be  proved,  621. 

How  a  will,  made  in  another  state,  disposing  of  property  in  this  State,  may  be  proved,  621. 

Wills  to  be  filed  in  the  clerk's  ofiice,  621. 

Probates  of  wills  evidence  of  the  devise  of  real  estate,  and  copies  may  be  received  as  originals,  621. 

Devises  construed  to  be  in  fee  simple,  unless  the  contrary  plainly  appears,  622. 

Construction  of  a  limitation  upon  dying  without  issue,  259,  622. 

How  a  written  will  of  lands  may  be  revoked,  622. 

How  a  will  of  personal  property,  of  greater  value  than  two  hundred  dollars,  may  be  revoked,  622. 

Of  the  value  of  two  hundred  dollars  or  less,  623. 

No  person,  under  eighte^  years,  can  make  a  will  of  chattels,  623.  , 

A  devise  to  a  child  shall  vest  in  his  children,  if  he  die  before  the  testator,  623. 

Children,  born  after  the  making  of  their  parent's  will,  may  petition  for  a  provision,  623. 

Court  to  decree  a  share  of  the  personal  estate,  and  appoint  commissioners  to  allot  a  share  of  the 
real,  623. 


^ 


INDEX. 


711 


WILLS  AND  TESTAMENTS,  (Continued.) 

Commissioners'  duty  in  making  the  allotment,  624. 
Legatees  to  contribute  proportionally,  624. 

What  decree  the  court  may  make  on  the  return  of  the  commissioners,  624. 
After  a  decree,  the  petitioners  to  be  deemed  legatees  and  devisees,  624. 

If  no  petition  filed  by  an  after-born  child  within  two  years,  executors  to  file  a  bill  or  petition  of  inter- 
pleader, 625. 
Guardian  to  be  appointed  by  the  court,  if  the  infant  have  none,  625. 
Petition  to  be  a  lien  on  the  lands  devised,  625. 
Devise  may  be  made  of  an  estate  held  for  the  life  of  another,  625. 
Such  estate,  when  not  devised,  shall  be  assets  in  the  hands  of  the  heir  of  the  tenant  for  life,  if  he  take 

it  by  special  occupancy,  366,  625. 
Certified  copies  of  wills  or  deeds  from  other  states  to  be  received  as  evidence,  263. 
When  some  executors  refuse,  those  accepting  the  trust,  or  administrators  with  the  will  annexed,  may 
sell  lands  according  to  the  will,  281. 
WILMINGTON  MARINE  HOSPITAL  ASSOCIATION.    See  Seamen. 
WITNESSES. 

SubpcEna  for  witnesses,  how  to  issue,  160. 
Subpoena  returnable  immediately,  when  to  issue,  160. 
How  subpoenas  may  be  served,  160. 

Witnesses  to  attend  from  term  to  term  till  discharged,  160. 
Penalty  on  witnesses  for  non-attendance,  160. 

Witnesses  shall  be  entitled  to  pay,  if  they  attend  after  the  suit  is  settled  in  vacation,  unless  notified, 
t^  160. 

■^       Witnesses  swearing  falsely  to  obtain  a  ticket,  guilty  of  perjury,  161. 
^      How  witnesses  shall  be  exonerated  from  forfeiture  and  costs  for  non-attendance,  161. 

In  what  cases  depositions  of  witnesses  may  be  taken,  161. 
^       Clerk  to  pass  upon  all  depositions,  161. 

vX   Notice  to  be  given  to  the  adverse  party  of  the  time  and  place  of  taking  depositions,  161. 
^v.       Under  what  circumstances  depositions  of  witnesses  may  be  taken  before  the  cause  is  put  to  issue, 
^  162. 

In  such  cases  notice  to  be  given,  &c.,  162. 

Witnesses  refusing  to  give  testimony  in  court  or  before  commissioners,  to  be  committed,  162. 

Witnesses,  during  their  attendance  to  be  exempt  from  the  service  of  all  civil  process  except  subpcE- 

nas,  162. 
Pay  of  witnesses  for  their  attendance,  162. 
After  the  removal  of  a  cause,  subposnas  and  commissions  to  take  testimony  may  be  issued  from 

either  court,  162. 
Witnesses  to  prove  their  attendance  at  each  court,  1 63. 
How  they  may  recover  pay  for  their  attendance,  163. 

Witness  tickets  to  be  filed  with  the  clerk  to  be  taxed  in  the  bill  of  costs,  163. 
Party  cast  to  pay  for  but  two  witnesses  to  prove  the  same  fact,  163. 
Subpoenas  for  witnesses  to  attend  commissioners,  &c.  how  to  be  issued,  163. 
Pay  of  witnesses  for  attending  commissioners,  &c.,  163. 
Testimony  of  colored  persons  incompetent  against  white  persons — Admissible  against  each  other, 

163. 
In  what  cases  a  subpmna  duces  tecum  may  issue,  165. 
Pay  of  witnesses  in  state  cases,  and  how  they  shall  be  paid,  220. 
Witnesses  to  attend  and  give  evidence  in  contested  elections — Penalty  for  failing,  300. 
Pay  of  witnesses  for  attending  in  such  cases,  301. 
Justice,  in  cases  within  his  jurisdiction,  to  direct  witnesses  to  be  summoned,  which  shall  be  done 

by  the  oflicer,  358. 
Penalty  on  witnesses  for  not  attending,  358. 
Forms  of  oaths  to  be  taken  by  witness  in  certain  cases,  433. 
WOMEN. 

No  female  shall  be  taken  or  imprisoned  for  debt,  155,  328. 

Women  entitled  to  benefit  of  clergy,  197. 

What  words  spoken  of  women  shall  be  actionable,  570. 


712  INDEX. 

WOODS.     See  Burning-  Woods. 
WRITS  OF  ERROR. 

Superior  courts  may  grant  writs  of  error — Proceedings  upon  them,  64. 

Time  within  which  writs  of  error  must  be  brought — Proviso  for  persons  under  disabilities,  65. 

Time  within  which  writs  of  error  for  matters  of  fact  must  be  brought,  65. 
WRECKS. 

Wreck  districts  laid  off,  626. 

Commissioners  of  wrecks  to  be  appointed — Their  bond  and  oath,  626. 

No  officer  of  the  United  States  to  be  a  commissioner,  627. 

Dutjr  of  the  commissioners  of  wrecks,  627. 

Commissioners  to  advertise  and  make  sales,  628. 
to  render  an  account  of  sales,  628. 

Their  compensation,  628. 

How  sales  to  be  advertised,  628. 

What  to  be  done  when  there  is  a  wreck  without  any  person  to  claim,  628. 

Persons  finding  wrecked  property,  what  to  do,  628. 

Punishment  for  stealing  or  embezzling  wrecked  property,  629. 

Penalty  on  commissioners  for  abuse  of  trust,  629. 

Persons  finding  wrecked  property  at  sea,  what  to  do,  629. 

Compensation  to  commissioners,  when  no  owner  appears,  629. 

YEAR'S  PROVISION.     See  Widow. 


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